Employment contracts with foreigners. Part 4: right to salary
In the case of a foreigner who has lost or not yet obtained rights to work and stay in Poland, the issues of conclusion and termination of the employment contract and setting the starting date for work (discussed in earlier blog posts) largely boil down in practice to the issue of the employer’s obligation to pay salary to such an employee.
This issue is basically resolved in its entirety by the applicable regulations.
Art. 88g(1) of the Act on Promotion of Employment and Labour Market Institutions of 20 April 2004 provides that the obligation to perform work in the territory of Poland expires in the event that a foreigner has no right to work in Poland. Based on this provision, the employer cannot be required to admit an employee to work who does not hold, or has lost, the right to perform work in Poland.
As a consequence of such refusal to admit the employee to work, the employee will have no right to receive salary for the period of non-performance of work. This is because pursuant to Art. 80 of the Labour Code, salary is due for work performed, and an employee is entitled to receive salary for a period when the employee is not working only when so provided by regulations of labour law.
Thus, in practice, an employee who does not begin working on the date specified in the employment contract, or an employee who is not working during the termination notice period, although formally still bound by the contract with the employer, will not have a right to receive salary for that period. Nonetheless, the employee will continue to accrue workplace seniority and the entitlements that flow from that.
Magdalena Świtajska
