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11/04/2021

CONTRACT OF MANDATE OR EMPLOYMENT CONTRACT

Whether we are dealing with an employment contract or a services contractis determined not by its name, but by the features of the relationship between the parties. The problem arises when the legal relationship exhibits features specific to both relationships. How then to qualify the legal basis of employment?

The differences start with the source of the regulation – the employment contract is introduced by the Labor Code, while the services contractis described by the provisions of the Civil Code. Hence, the labor court or the civil court will be competent to settle disputes arising from the above relations, respectivelyAs a rule, an employment contract is more favorable for the employee. It provides for notice periods (the employer cannot fire the employee overnight), as well as paid annual leave. Employees under an employment contract are also entitled to protection against dismissal in certain situations, e.g. during pregnancy or maternity leave. In turn, the services contract is more flexible, as the parties may terminate it at any time. However, the service provider is not subject to compulsory health insurance, which in the event of absenteeism due to health condition deprives him of the right to the benefit.

According to the Labor Code, a characteristic feature of an employment relationship is the subordination of the employee, i.e. personal performance of activities under the supervision and management of the employer, which entails the possibility of issuing binding service contracts. In the case of an employment contract, the time and place of its performance is determined by the employer, and the work is performed at the risk of the employer. In turn, the characteristic for service providing are, among others no precise definition of working hours, greater flexibility in the organization and no top management. It is easy to notice that the indicated features of the employment relationship can be found in many civil law contracts. So how should you qualify the contract?

First of all, it is necessary to check whether the contract does not contain any foreign elements for a given type of employment, e.g. the need to make up for a holiday, no obligation to perform work in person or follow instructions. Their presence basically means that we are not dealing with an employment relationship. In addition, it should be noted that although the above-mentioned features may appear in both a civil law contract and an employment contract, they are not of exactly the same nature (judgment of the Supreme Court of January 21, 2021, III PSKP 3/21) – leaving at the disposal of the service recipient cannot rely on the execution of service contracts on an ongoing basis, depending on the needs – this circumstance precludes the relationship from being classified as a service contract.

Next, it is necessary to check which features are predominant – appropriate for the employment contract or the service contract. In the event of the same intensity, the key is the will of the parties and the purpose of the contract, also expressed in its name (judgment of the Supreme Court of September 14, 1998, PKN 334/98, OSN 1999). This means that it is permissible to perform the same obligations under employee or civil law employment if such is the will of the parties and unless otherwise opposed by other circumstances. This is important in the context of many court proceedings in which a party claims that the same responsibilities are performed by another person under an employment contract.

The above indicates that although the provisions of the Labor Code aim to eliminate the practice of forcing the resignation from the status of an employee (when the work is to be performed in conditions similar to the employment relationship), they do not prevent the use of a civil law contract when it is in accordance with the will of the parties. In particular, Art. 22 § 11 of the Labor Code does not introduce a presumption of an employment relationship (judgment of the Supreme Court of 21 January 2021, III PSKP 3/21). The introduction of the provision requiring, when assessing a relationship, to take into account its features, and not only its name, did not change much in jurisprudence, as the nature and all circumstances related to employment had already been taken into account when making a legal qualification.