Employment contracts with foreigners. Part 2: starting date for work
Employers intending to hire a foreigner who has yet to obtain the documents required by law to legalise the person’s work and stay in Poland often wonder how to establish the starting date in the employment contract.
Under the Labour Code, setting the start date is a mandatory element of an employment contract. At the same time, however, it may be difficult to set a specific date for the start of work, or even impossible, in a situation where the parties do not know and cannot predict when the foreigner will receive the legally required documents (which happens more and more frequently, due to delays in consideration of applications by the authorities) and actually be ready to legally start working for the employer.
Like the employment contract itself, the date for starting work cannot be conditional. Thus it cannot be stipulated in the employment contract that work will begin under the condition that the foreigner receives the permit required by law and (if necessary) a visa. Practically, this would mean impermissible conclusion of an employment relationship, as the employment relationship is deemed to be formed as of the date of commencement of work or, if that date is not established, as of the date of conclusion of the employment contract.
The date of commencement of work must therefore be determined and indicated in the employment contract with a foreigner. But there does not appear to be any legal barrier to indicating at the same time, in the contract, in descriptive terms citing future events, that the date will be postponed if the legally required permit or visa is obtained at a later date. Nonetheless, it is appropriate to specify a backup date as the limit for such postponement.
In any event, to eliminate uncertainty as to the date when the employee will assume the rights associated with the employment relationship (such as the workplace seniority period relevant for calculation of the termination notice period), the parties should confirm in writing, through an annex, the new actual date of commencement of work.
Magdalena Świtajska
