Employers who fail to comply with the obligation to file a notification on the start of work by a Ukrainian citizen can avoid sanctions in certain situations.
According to the position of the Department of Legalization of Employment of the Chief Labour Inspectorate, employers who fail to comply with the obligation to file a notification on the start of work by a Ukrainian citizen may in certain situations avoid the charge of committing the offense of failure to legalise the work of a foreigner. This primarily concerns situations in which a Ukrainian citizen has received a decision granting temporary work and residence permit, which requires the employer to submit a notification to the district labour office. The State Labour Inspectorate position is that the employer should not bear the negative consequences of failure to submit the notification if the foreigner:
- is exempt from the work permit requirement, for example, as a full-time graduate of a Polish university or
- has a valid work permit or statement on entrusting work to a foreigner, and work is performed under the conditions indicated in this document, or
- continues to work under the conditions indicated in the previous temporary residence and work permit or
- continues to work under the terms and conditions indicated in the notice previously filed by the employer.
In practice, none of the above situations may apply to foreigners, while the reason for failure is late delivery of the residence decision to the employer. In such a situation, the Labour Inspectorate recommends that the notification be submitted immediately through the praca.gov.pl portal. According to inspectors, the employer should then not be held liable due to the lack of fault in not submitting a notification on time. Complications, however, may arise over the issue of proving when the foreigner communicated the decision to the employer, which will be key to avoiding liability for illegal employment.