Can the employer withdraw after the preliminary contract has been signed?
The recruitment process is costly and time-consuming. Therefore, an employer who has already selected a candidate for employment may want to obtain a guarantee from him that he will not resign from concluding an employment contract - especially when a longer period is to elapse between the recruitment and the conclusion of the employment contract. Also a candidate for employment may depend on a similar assurance from the employer. The preliminary contract is a document that makes it possible.
Establishing an employment relationship
The employment relationship is most often established by concluding an employment contract. In special cases, the source of an employment relationship may also be an appointment, election, appointment or a cooperative employment contract (Article 2 of the Labor Code). and the time specified by the employer, and the employer - to hire an employee for remuneration (Article 22 § 1 of the Labor Code).
The moment of establishing an employment relationship on the basis of an employment contract
The content of the employment contract specifies the parties to the contract, the type of contract, the date of its conclusion and the working and pay conditions, including in particular:
- type of work;
- place of work;
- remuneration for work corresponding to the type of work, indicating the components of the remuneration;
- working hours;
- date of commencement of work.
The employment contract should be concluded in writing, and if it is not concluded in this form, the employer is obliged to confirm in writing the arrangements regarding the parties to the contract, its type and conditions before allowing the employee to work.
The employment relationship is established on the date specified in the contract as the date of commencement of work, and if this date is not specified - on the date of conclusion of the contract (Article 26 of the Labor Code). The employment contract may be concluded (signed) on any day earlier than the day on which the work is to commence.
On August 18, 2020, the employer concluded an employment contract with the employee, in which it was stated that the date of commencement of work will be September 1, 2020. Therefore, the employment relationship between the parties was established on September 1, 2020 and only from that date the parties are obliged to mutual benefits under the employment contract.
The parties concluded an employment contract on October 1, 2020, without specifying the day of commencement of work separately. In these circumstances, it should be assumed that the date of commencement of work, and consequently also the date of entering into employment, is October 1, 2020.
Pursuant to Art. 389 § 1 of the Civil Code, a preliminary contract is an agreement by which one or both parties undertake to conclude a marked contract (the so-called final contract). All material provisions of the final contract should be specified in the preliminary contract.
So, if the final contract is to be an employment contract, the preliminary contract should state between which parties it will be concluded, what type of contract it will be (for a trial period, for a definite or indefinite period), and indicate the date on which it will be concluded and define working and pay conditions.
The promise to conclude an employment contract in the future with a specific content may be made in the preliminary contract by both parties (the future employer and future employee) or only one of them.
Consequences of concluding a promised agreement
Pursuant to Art. 389 § 2 of the Civil Code, if the time limit within which the promised contract is to be concluded has not been specified, it should take place within the time limit set by the party entitled to request the conclusion of the promised contract. If both parties are entitled to demand the conclusion of the promised contract and each of them has set a different date, the parties are bound by the time limit set by the party that previously made the relevant declaration. If, within one year from the conclusion of the preliminary contract, no time limit has been set for the conclusion of the final contract, its conclusion may not be demanded.
The parties concluded a preliminary contract on July 12, 2020, in which the future employer undertook to conclude a final contract with him on December 1, 2020 - an employment contract. Therefore, the future employee has the right to demand that the future employer conclude an employment contract with him on a fixed date - December 1, 2020.
The parties promised each other, in the preliminary contract concluded on May 4, 2020, that they would conclude a promised contract - an employment contract. However, they did not specify the date on which the final agreement is to be concluded. One of the parties to the preliminary contract (the future employer) then set the other party (the future employee) to conclude the promised contract on August 1, 2020. Also, the future employee - before the statement of the future employer reached him, indicating August 1, 2020 - sent him his statement setting the date of concluding the employment contract on September 1, 2020. However, the statement of the future employer setting the date of concluding the final contract reached the future employee earlier than his statement to the future employer. Therefore, the employment contract should be concluded on August 1, 2020, and not only on September 1, 2020.
Avoidance of concluding a promised contract
If the party obliged to conclude the promised contract evades its conclusion, the other party may demand compensation for the damage it suffered because it was counting on the conclusion of the promised contract (the scope of compensation may also be differently specified in the preliminary contract). However, when the preliminary contract meets the requirements on which the validity of the promised contract depends, in particular the requirements as to the form, the entitled party may seek the conclusion of the final contract. Claims under the preliminary contract shall expire after one year from the date on which the promised contract was to be concluded. If the court dismisses the request to conclude the promised contract, the claims under the preliminary contract shall be time-barred after one year from the date on which the judgment became final and binding (Art. 390 of the Civil Code).
Thus, the effect of the obligated party's failure to conclude the promised contract may be the necessity to pay the other party appropriate compensation or the forced conclusion of the promised contract - as a result of a court judgment. The fact of the occurrence of damage, the causal link between the failure to conclude the final contract and the occurrence of the damage and the amount of the damage suffered must be demonstrated by the party claiming compensation, presenting relevant evidence for this fact.
In what cases will the employer not have to conclude the final agreement?
Bearing in mind the above-mentioned regulations, it should be stated that an employer who undertook to conclude an employment contract in the preliminary contract will be able to withdraw from this obligation without negative legal effects resulting from Art. 390 of the Civil Code, when:
- will terminate the preliminary contract in agreement with the other party;
- the other party to the preliminary contract will not set him / her within one year from the conclusion of the preliminary contract the deadline for the conclusion of the final contract - this, however, only applies if the preliminary contract itself does not specify this date.
In conclusion, a written preliminary contract with a promise to enter into an employment relationship is a stronger guarantee than a verbal one. When deciding to sign it, however, it should be borne in mind that unilateral withdrawal from the obligations contained therein may prove impossible, without negative legal consequences. It is also worth noting that instead of concluding a preliminary contract, the parties deciding to enter into an employment relationship may immediately conclude an employment contract, indicating in it as the date of commencement of work, and thus establishing the employment relationship, any day after the conclusion (signing) of the contract of employment. work.
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