Some obligations of the employer employing a foreigner (part 3) – consequences of failure to comply with them

Some obligations of the employer employing a foreigner (part 1)

Some obligations of the employer employing a foreigner (part 2)

Earlier entries here and here referred to some obligations of entities entrusting the performance of work (employers) in the context of employing foreigners. Because these obligations are quite numerous and they are very meticulous, unfortunately they are not fulfilled relatively often, even by pure chance. Unfortunately, the consequences of an employer failing to meet his obligations are not trivial. The consequence will be revocation of the work permit, as well as a fine.

To simplify the matter, it should even be assumed that any failure by the employer will result in revocation of the permit. The regulations provide for such a consequence both in relation to obligations strictly connected with employing foreigners, as well as with the classic ones arising from the labour law. Therefore, the employer should be aware of this as soon as possible, comply with all regulations and not underestimate anything at all.

As a result, it is important for the employer to watch over and complete all obligations in a timely manner. Contrary to appearances, when entities entrusting the performance of work to foreigners do not fulfil all obligations take place relatively often.

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Withdrawal of a work permit due to failure to comply with basic labour law obligations

First of all, the voivode revokes the permit when:

• the employer did not pay the due remuneration for work to the foreigner or did not pay due social security contributions,
• the entity entrusting the performance of work has not updated the minimum wage (what should be considered when a foreigner is employed for a minimum wage),
• the employer has not concluded a written contract with the foreigner.

Withdrawal of a work permit due to failure to comply with the obligations related to employing a foreigner

Secondly, the permit is revoked when:

• the employment contract of the foreigner contains other employment conditions than those resulting from the issued work permit, and which at the same time result from legal provisions, in practice these are conditions regarding remuneration for work, which may not be lower than the remuneration for comparable work/type,
• before signing the contract with a foreigner, the employer did not provide him with a translation of this contract into a language he could understand,
• the entity entrusting the performance of work did not give one copy of the work permit to an employed foreigner,
• the voivode states that the employer did not inform the foreigner about actions taken in connection with the proceedings for granting or extending the work permit and decisions on issuing, refusing to issue or revoking the permit,
• the voivode states that the employer did not exercise due diligence in proceedings regarding the permit, extension and revocation of a foreigner’s work permit,
• the employer, at the request of, among others, the Border Guard or the Tax Office (other authorities referred to in the provisions) did not provide them with the documents confirming the fulfilment of obligations related to employing a foreigner,
• the foreigner has lost the right needed to practice the profession (e.g. a doctor has lost the right to practice a profession),
• the foreigner has not taken up work within a period of 3 months from the initial date of validity of the work permit or has interrupted his work for a period exceeding 3 months,
• in the case of a foreign employer – he did not adjust the remuneration of the foreign employee to the level of remuneration provided for by specific legal provisions.

Other situations in which the voivode will revoke the permit

At this point, it is also worth mentioning other premises (events) that cause the decision to issue a work permit to be revoked. This will happen when:

• circumstances or evidence regarding the decision have changed,
• the reason for granting the permit has ceased, e.g. the employer has terminated the employment contract with the employee and does not want to employ him anymore,
• the voivode received information that a foreigner’s stay in the country is undesirable (an entry in the relevant list is required),
• the employer does not run a business, agricultural or statutory activity (e.g. the activity is suspended, the employer is removed from the register or is undergoing the liquidation proceedings),
• the employer has been legally punished for the offenses specified in the provisions (in principle, offenses related to entrusting illegal work),
• as well as when the employer has been punished for crimes related to the violation of the rights of persons engaged in gainful employment, crimes against the credibility of documents or of human-trafficking.

When the decision is not revoked

In literally a few cases, despite the circumstances described above, you can defend yourself against revoking your permit. The condition is that the employer has completed some formalities. First of all, it is a situation related to a foreign employer. As a rule, the circumstance that is treated by the voivode as a change in circumstances relating to the issued decision is the change of the person representing the foreign employer. If a foreign employer notified the voivode of the above within 7 days, the work permit will not be revoked.

Moreover, if the foreigner has not taken up work within a period of 3 months from the initial date of validity of the work permit or has interrupted work for a period exceeding 3 months, then the permit will not be revoked, but only if the condition is met. In a letter to the voivode, first of all, he must be notified of this circumstance (i.e. not taking up work or an interruption in performing work). The reason for this must be stated. In addition, the circumstances that show that the permit will be used in accordance with its content must be indicated.

Example: The employer has obtained a work permit for a foreigner – a citizen of a visa country (e.g. China, India). The permit is valid from October 7, 2019. The employer knows that in the best case, the foreigner will receive a visa on February 1, 2020. In order to be protected against revoking the permit, the employer must inform the voivode in writing at latest to January 14, 2020, that:

• the employee has not yet started work,
• provide a reason, e.g. a foreigner is applying for a visa but has not yet received it and has not yet arrived in Poland,
• the employer still intends to employ this person upon his or her arrival in Poland.

When to issue a fine

Failure to comply with the obligations listed below, also discussed in the entry Some obligations of the employer employing a foreigner (part 2), will result in a fine from PLN 100 to PLN 5.000. Why like that? This question is answered below.

The case concerns failure to fulfil the information obligations towards the voivode about the following:

• the foreigner started work of a different nature or position other than specified in the work permit,
• the seat or place of residence, name or legal form of the entity entrusting the foreigner with performance of work has changed,
• another employer took over the establishment or its part,
• the establishment or its part was transferred to another employer,
• the person representing the foreign employer has changed,
• the foreigner has not taken up work within 3 months from the initial date of validity of the work permit,
• a foreign employee has interrupted his work for more than 3 months,
• the foreigner completed work earlier than 3 months before the expiry of the validity of the work permit.

Why an offense

He regulations show that failure to comply with each of these obligations is an offense. The Act explicitly regulates that the provisions of the Code of Conduct on petty offences shall apply to the proceedings. Finally, these acts are punishable by a fixed amount, and we are therefore dealing with an offense.

The provision provides for a minimum fine of PLN 100. In turn, the Code of Petty Offenses shows that the fine cannot be higher than PLN 5.000. Because this is an offense, it will be impossible to defend yourself with the negligible social harmfulness of the act. It must be remembered that offenses are in principle characterized by low or just negligible social harmfulness of the act. However, it is always good to refer to mitigating circumstances, of which you will read in another entry.

Legal status as of November 13, 2019.

Other articles in the FOREIGNERS category – www.adwokatagk.pl/category/cudzoziemcy/