Preliminary contract with a job applicant

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The issue of a preliminary contract prior to entering into an employment contract has not been regulated in detail in the Labor Code, however, pursuant to Art. 300 of the Labor Code, employers may take advantage of the provisions of the Civil Code in this respect, i.e. in accordance with Art. 389 of the Civil Code and Art. 390 of the Civil Code, it is possible to conclude a preliminary contract before the employment relationship is established.

Preliminary agreement in the Civil Code

It is worth recalling that according to the Civil Code“Preliminary contract (pactum de contrahendo) is a contract the purpose of which is to prepare and ensure the conclusion of another contract (final or final contract). The need to conclude a preliminary contract arises when the parties, for actual or legal reasons, are not yet ready to be bound by a definitive contract, but want to legally guarantee the conclusion of this contract for the future " (cf. Jerzy Ciszewski (ed.), Civil Code. Commentary to Art. 389 of the Civil Code, 2nd edition).

Pursuant to Art. 389 of the Civil Code "The contract by which one of the parties or both undertake to conclude a designated contract (preliminary contract) should specify the essential provisions of the final contract. If the time limit within which the promised contract is to be concluded has not been specified, it should be concluded 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 date of concluding the preliminary contract, the deadline for concluding the final contract has not been set, its conclusion may not be demanded. "

However, according to Art. 390 of the Civil Code "If the party obligated to conclude the promised contract evades its conclusion, the other party may demand compensation for the damage it suffered by counting on the conclusion of the promised contract. The parties may differently define the scope of compensation 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 final contract, the claims under the preliminary contract shall be time-barred after one year from the date on which the judgment became final ”.

It is worth quoting "Resolution of the Supreme Court of April 22, 1977 (I PZP 5/77), according to which the conclusion of such a preliminary contract is fully admissible, and the claims of a candidate for an employee resulting from the failure to conclude a promised contract may consist in either a demand to conclude a definitive employment contract , or on the demand for compensation, which has been limited by the judicature to a maximum of three months' salary for the position covered by the preliminary contract. On the other hand, the employer cannot demand that the contractor conclude a contract, and his claims may be limited only to the negative (negative) interest of the contract. Compare also the decision of the Supreme Court of May 13, 1977 (I PZ 23/77), according to which preliminary contracts obliging to conclude an employment contract are not inconsistent with the principles of labor law (Art. 389 of the Civil Code in conjunction with Art. 300 of the Code of Civil Procedure) and the judgment of the Supreme Court of March 15, 1977 (I PRN 22/77), according to which the problem of preliminary contracts was not directly regulated in the provisions of the Labor Code. This does not mean that such employment contracts are unacceptable. There are no legal obstacles for the parties in the preliminary contract to undertake to conclude a marked employment contract " (cf. Gersdorf Małgorzata, Raczkowski Michał, Rączka Krzysztof, Labor Code. Commentary, 3rd edition).

What to write in the preliminary contract with the candidate?

A preliminary contract may be concluded pursuant to Art.389 of the Civil Code, which under Art. 300 of the Labor Code applies accordingly to employment relationships. The preliminary contract should contain the basic issues related to the final contract along with the terms and conditions between the parties, i.e. the place of work, type of work, date of commencement of work, remuneration.

It is worth quoting the judgment of the Supreme Court of September 10, 1997 (I PKN 243/97): "If the preliminary agreement was not concluded, because the parties' negotiations do not satisfy the requirements of art. 389 of the Civil Code and do not establish material provisions referred to in Art. 29 § 1 and 2 of the Labor Code, and in particular they do not specify the type of work, the date of its commencement and remuneration corresponding to the type of work, then neither party to the negotiations is entitled to seek the conclusion of an employment contract pursuant to Art. 390 § 2 of the Civil Code in connection with Art. 300 k.p. ".

The employee, thanks to the conclusion of the preliminary contract, can expect that the employer will conclude an employment contract with him on the date and under the conditions specified therein. The employer should be sure that thanks to this contract he will be able to count on the employee's work in the future. Thus, the parties agree to implement certain arrangements for the performance of work within the prescribed period. The arrangements in the preliminary contract may not be less favorable than the regulations contained in the Labor Code. It is worth adding that the parties may include additional information in the contract, e.g. contractual penalties for withdrawing from the contract without reason.

Claim for damages in the absence of a preliminary contract

It is worth emphasizing that “The conclusion of a preliminary employment contract gives the parties the rights specified by civil law in order to properly fulfill the obligations entered into in the preliminary contract. Therefore, if the (future) employer evades the conclusion of the promised employment contract, the employee is entitled, inter alia, to a claim for compensation for the damage he suffered by counting on concluding the promised contract " (Art. 390 § 1 of the Civil Code) (see the judgment of the Supreme Court of 6 January 2009, file ref. I PK 117/2008).

In the resolution of April 22, 1977 (I PZP 5/77), the Supreme Court indicated that "In the event of the employer's refusal to conclude a promised employment contract for an indefinite period, the aggrieved party is entitled, pursuant to Art. 390 § 1 of the Civil Code in connection with Art. 300 of the Labor Code a claim for compensation, the amount of which, as a rule, should not exceed the amount of three months' remuneration for work in the position covered by the preliminary contract. (...) In employment relationships, the loss of a person applying for employment will usually constitute "earnings lost as a result of being unemployed". (...) ".

In summary, the conclusion of a preliminary contract with a candidate is permissible under the terms of the Civil Code. The agreement should be concluded in writing. The conclusion of the contract should be preceded by negotiations between the employer and the employee, which will allow to settle the most important issues of work performance (type, working conditions, date of starting work, remuneration).

It is worth recalling that pursuant to Art. 25 of the Labor Code, the employer may conclude an employment contract with an employee for an indefinite period, a contract of employment for a specified period or a contract for a trial period. "An employment contract for a trial period, not exceeding 3 months, is concluded in order to verify the qualifications of the employee and the possibility of employing him for a specific type of work". The above-mentioned employment contracts are term contracts.