Employment contract via SMS? Is it possible?
In the Civil Code, since September 8, 2016, there is the concept of a documentary form of a legal act. Therefore, according to Art. 772 of the Civil Code, in order to maintain the documentary form of a legal transaction, it is sufficient to submit a declaration of will in the form of a document in a manner enabling the identification of the person submitting the declaration. However, according to Art. 773 of the Civil Code, a document is an information carrier that allows to read its content.
Therefore, today we can call a document an e-mail, a text message such as SMS and MMS, a video file located e.g. on a website, an audio recording, e.g. on a WhatsApp or Viber messenger. A document submitted in the above form in the form of a photo or graphic, saved on any medium, should meet the requirements of Art. 772 of the Civil Code. It is important that you can read the document and identify who this statement came from. In addition, compared to others, the above form of submitting the declaration does not require a signature, so it is less demanding.
The information contained in the document may be a declaration of will or knowledge. Joke. 772 of the Civil Code, it follows that it must contain a declaration of will, if the document is to be used to submit such a declaration. The form of legal actions is a way of showing the will, the expression (disclosure) of which is a constitutive element of the declaration of will (cf. Comment to the Civil Code, Volume I, General Part (Articles 1-125) Fras Mariusz (ed.), Habdas Magdalena (ed. .)).
Lack of documentary form regulations regarding the termination of an employment contract
It should be noted that the Labor Code does not regulate the issue of the documentary form in the scope of concluding employment contracts. It is worth recalling that pursuant to Art. 300 of the Labor Code, the provisions of the Civil Code can be applied by reference. However, in a situation where the provisions of the Labor Code require a written form for declarations of will or knowledge confirmed by the signatures of the parties, the above-mentioned document form will not apply.
Pursuant to Art. 29 § 2 of the Labor Code, an employment contract is concluded in writing. If the 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.
Therefore, in the current legal state, an employment contract via SMS is unacceptable due to the violation of the provisions of the Labor Code. Incidentally, it is worth mentioning that in the case of concluding civil law contracts, there are certain situations in which documentary forms will be acceptable. For example, when concluding a mandate contract, the mandate may arrange with the principal to confirm in an SMS text message the number of hours of the mandate or services rendered in order to calculate the remuneration amount.
Employment contract via SMS, i.e. forms of legal transactions in employee relations
It should be mentioned that for some activities in the sphere of the Labor Code, in relations between the employer and employees, it will be possible to use the documentary form of legal transactions. In particular, for evidence purposes, the form of SMS or e-mail has long been used, inter alia, in lawsuits before labor courts.
It is worth citing the judgment of the Court of Appeal in Warsaw of August 26, 2015, file no. VI ACa 1285/14, in which it was indicated that an e-mail message, text message, as well as a printout may be considered "other means of evidence" within the meaning of Art. 309 of the Code of Civil Procedure, the provisions of the Code of Civil Procedure do not contain a closed catalog of evidence and it is permissible to use any source of information on facts relevant to the resolution of the case, as long as it is not contrary to the provisions of law.
It is worth pointing out that documentary forms such as SMS will be applicable to those provisions of the Labor Code that do not require a written form. Therefore, when granting consent for annual leave, consent to grant a day off in exchange for overtime worked, consent to the use of individual working time, termination of the contract by mutual agreement, the employer will be able to use the documentary form.
Moreover, the development of technology requires reconsidering whether the expression "in writing" appearing in the Labor Code is surely a written form within the meaning of the Civil Code. Adopting this interpretation to date requires both the conclusion of the employment contract and its termination in electronic form in writing, i.e. affixing the declaration with a secure electronic signature verified with a valid qualified certificate (cf. Article 78 § 2 of the Civil Code). Meanwhile, the secure electronic signature has not passed the practical exam. This leads to a flexible interpretation of the term "in writing", which would allow the submission of statements by electronic means, ie e-mail, SMS. It should be pointed out that in international doctrine it is assessed that the requirement of writing is met by an electronic message if it can be obtained in an intelligible form, which would be the main function of the letter (cf. Gersdorf Małgorzata, Rączka Krzysztof, Labor Law in questions and answers).
Pursuant to Art. 77 of the Civil Code
§ 1. Supplementing or changing the contract requires the preservation of the form provided by the law or the parties for the purpose of its conclusion.
§ 2. If the contract was concluded in writing, documentary or electronic, its termination with the consent of both parties, as well as withdrawal from it or its termination requires a documentary form, unless the law or the contract provides for a different form.
§ 3. If the contract has been concluded in another specific form, its termination with the consent of both parties requires the use of such form as the law or the parties provided for its conclusion; while withdrawal from the contract or its termination should be confirmed in writing.
In conclusion, it is worth pointing out that the introduction of a documentary form to the Civil Code is an additional facilitation when performing legal actions.In addition to formalized written or oral forms, it will be possible to perform a legal action via SMS, e-mail, information stored on a pendrive, etc. Preserving the information in the above manner and enabling its preservation and restoration will meet the evidentiary requirements to confirm the arrangements between the parties. In view of the above, an employment contract via SMS in the current legal state is not permissible due to the lack of regulations in this regard in the Labor Code. In addition, the provisions on concluding employment contracts require a written form. However, it should be noted that the employee or the employer may terminate the employment contract via SMS, it will be effective, but not compliant with the regulations. Such a decision to split between the parties may be challenged before the labor court. Therefore, the Civil Code allows for the termination of a contract concluded in writing with the consent of the parties, withdrawal from the contract or termination in the form of an SMS. In a situation where the content of the contract does not contain a provision that it may be terminated in writing under pain of nullity, the form of an SMS or a video recording will be able to effectively terminate it. It is worth adding that the termination of the employment contract by SMS or e-mail is effective, but made in a faulty manner. Such termination may be challenged by the labor court and result in the employee being reinstated.