Termination of the employment contract before its commencement

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An employment contract may be concluded for a specific period of time or indefinitely. Each of such contracts may be terminated in compliance with the appropriate procedures and deadlines specified in the provisions of the Labor Code. However, is it possible to terminate the employment contract before its commencement?

Conclusion of an employment contract

As a rule, each employment contract should be concluded in writing. However, the legislator allows for an oral employment relationship - provided that the employer later confirms the working conditions in writing. However, this should take place before the employee is allowed to work

Judgment of the Provincial Administrative Court in Rzeszów of 6 December 2017 (file reference number II SA / Rz 1188/17)

The obligation to conclude an employment contract in writing does not mean that failure to comply with this form will invalidate the contract.The written form of the employment contract is only a form for evidence purposes. An employment contract concluded orally is therefore effective, the employer is only obliged to under Art. 29 § 2 sentence second of the Labor Code, which states that if an employment contract has not been concluded in writing, the employer, before allowing the employee to work, confirms to the employee in writing the arrangements for the parties to the contract, the type of contract and its terms.

Termination of the employment contract

As we know, any employment contract may be terminated - such a situation may occur both on the initiative of only one of the parties to the employment relationship, as well as with their mutual consent. Pursuant to Art. 30 of the Labor Code, the employment contract is terminated:

  • by agreement of the parties;
  • by a declaration of one of the parties with a notice period (termination of the employment contract with notice);
  • by a declaration of one of the parties without notice (termination of the employment contract without notice);
  • with the passage of time for which it was concluded.

An employment contract for a trial period is terminated at the end of this period, and before its expiry, it may be terminated by notice. The notice period for an employment contract for a week or a month or a multiple thereof ends on Saturday or on the last day of the month, respectively. Each party's declaration of termination or termination of the employment contract without notice should be made in writing. The employer's statement on the termination of an employment contract concluded for an indefinite period or on the termination of an employment contract without notice should indicate the reason justifying the termination or termination of the contract. The employer's statement on the termination of an employment contract or its termination without notice should contain an instruction on the employee's right to appeal to a labor court.

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Termination of the employment contract prior to the commencement of the performance of duties

Sometimes it happens that the employment contract specifies a different date of commencement of the performance of employee duties than the date of the employment relationship. As a rule, it occurs as a result of an agreement between the employer and the employee, although sometimes the employer may force such practice on the future subordinate. The provisions of the labor law allow the use of this type of practice - the commencement of work may take place later than the actual signing of the employment contract.

Example 1.

Ms Iwona received a job offer in one of the Warsaw hotels, she will provide services as a receptionist. The employer signed an employment contract with her on June 2, 2021, but noted that she should not appear at the hotel until June 7, 2021 - this is dictated by the need to introduce organizational changes and a minor renovation of the hotel reception. The employer may set the date of commencement of work, which will be later than the date of signing the contract - it is worth, however, that such a provision should be entered into the employment contract in order to secure the rights of Ms Iwona.

The termination of an employment contract is relatively rare when the employee has not yet started providing his services. However, such situations are legally permissible and they also happen from time to time. In such a case, the right to terminate the contract is vested in both the employee and the employer himself, on the same terms as if the contract had already been performed. Remember, however, that the termination of the contract in such a case does not mean that the so-called employment period. Ultimately, the employee was not allowed to perform his duties.

The judgment of the Supreme Court of 29 October 2007 (file reference number II PK 56/07)

When the parties indicated in the employment contract the date of its commencement later than the date of concluding the contract, the time between its conclusion and the commencement of the employment relationship is not the period of employment. Therefore, the subordinate is not entitled to any rights resulting from the employment relationship during this period. Either party may at this time terminate the employment contract on the general principles provided for in the Labor Code, i.e. with or without notice, as the possibility of terminating the contract does not depend on establishing an employment relationship between the parties. It is also permissible to terminate an employment contract by mutual agreement of the parties.

How to terminate an employment contract before its commencement?

The need to terminate an employment contract before its commencement may be due to various reasons. Both the employee and his employer are entitled to make such a decision. In fact, the termination of the contract does not differ from the normal termination of the employment relationship, i.e. when the employee has previously been allowed to perform the duties entrusted to him.

Termination of the employment contract requires the submission of a declaration, the content of which will clearly indicate which employment relationship ends and on what date exactly this will occur. In the case of a unilateral termination of the contract (resulting from the initiative of only one of the parties to the employment relationship), it is worth providing the reason for such a decision. However, if the employer and the employee intend to use the procedure for terminating the contract by mutual agreement, the justification need not be given at all.

The declaration regarding the termination of the employment contract should be submitted in writing, mainly for evidence reasons. However, the provisions of the labor law allow the employer or employee to express their will also orally. In practice, however, it is not common, it is safer to simply terminate the contract in writing.

It is also worth mentioning the period of termination of the terminated contract - in accordance with Art. 36 § 1 of the Labor Code, the notice period is:

  • 2 weeks, if the employee has been employed for less than 6 months;
  • 1 month, if the employee has been employed for at least 6 months;
  • 3 months, if the employee has been employed for at least 3 years.

In practice, the notice period for an employment contract before its commencement is 2 weeks - it is rare that an employee is not allowed to work for more than 6 months from the date of signing the employment contract.

Summary

Termination of an employment contract prior to its commencement is permissible under Polish labor law. The decision in this regard may be made by each party to the employment relationship independently and in agreement. Remember, however, that the termination of the contract applied in this mode may not be associated with the creation of a period of employment - the work was not actually performed by a given person, although, of course, an employment relationship was created just by signing a given contract. The termination of the contract may take the form of termination of the contract with or without notice, it should be made in writing, although an oral form is also allowed.