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Employment certificate – a practical guide

9 January 2023

Employment certificate – a practical guide

Reading time: 5 minutes.

 

From the article you will learn:

  • how long the employer has to issue a work certificate?
  • how the work certificate should be delivered to the employee?
  • what the consequences of failing to meet the obligations imposed by the Labour Code?

 

Dagmara ANIOŁEK
HR & Payroll Senior Specialist at RSM Poland

 

An employment certificate is a document that almost every person actively working full-time has had to do with. Basically, it is a simple employment record form that the employer fills out to the best of his knowledge and gives to the employee after the end of the employment relationship. Although it is a prosaic and mundane duty, the diligence in completing this document (and the deadlines for its submission indicated in the regulations) should not be underestimated, because in the event of negligence the consequences for the employer can be really severe.

According to Art. 97 § 4 of the Labour Code, the Minister competent for labour matters specifies, by regulation, the detailed content of the employment certificate, the manner and mode of its issuing, rectification and supplementation, as well as the auxiliary pattern of the employment certificate.

The information that the employer must provide in the document can be found in the Regulation of the Minister of Family, Labour and Social Policy on the employment certificate (Journal of Laws 2020, item 1862). Therefore, in this guide, we will not deal with the content of the employment certificate itself, but with the obligations that the employer has after issuing the document.

The necessary information on completing the work certificate can be found in the Regulation of the Minister of Family, Labour and Social Policy of 30 December 2016 on the work certificate, Journal of Laws 2016 item 2292 as amended.

Let us remember that the template of the certificate indicated in the regulation is only an aid (as indicated in §2 (3) of this regulation). When issuing an employment certificate, we can only fill in those points that relate to the employee and his employment history, omitting the others. You can also use your own template, remembering to include the information specified in the Regulation.

The template of the employment certificate also informs that there is no need to affix the employer’s seal in the upper left corner of the document. The seal can be replaced with information about the company’s registered office and tax identification number.

Who is obliged to issue a work certificate?

Every entrepreneur who employs employees under an employment contract is obliged to issue an employment certificate. It should be remembered that the duration of the contract on the basis of which the termination was made is irrelevant here. The employer has an absolute obligation to issue the document after the end of the contract, whether for a definite, trial or indefinite period.

The transfer of the employment certificate cannot be made conditional on the employee’s settlement with the employer (Art. 97 § 13 of the Labour Code).

The employee is not obliged to submit an application for an employment certificate or to demand its issuance (cf. the judgement of the Supreme Court of 18 February 1976, issued in the case with reference number I PR 1/76).

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Is the employer obliged to issue a work certificate after the death of an employee?

In the regulation of the Ministry of Labour and Social Policy, we will find detailed information on issuing a work certificate for a person who has died. Paragraph 5 provides that in the event of termination of the employment relationship due to the employee’s death, the employer shall draw up an employment certificate and include it in the personnel file of the deceased employee. There is no obligation to send the document to the family.

On the other hand, at the request of the spouse (or other person entitled to apply for a survivor’s pension or other person who is the employee’s heir), submitted in paper or electronic form, the employer must issue an employment certificate within 7 days from the date of submission of the application.

When is the Employer not obliged to issue an employment certificate?

Currently, there are only two situations in which the employer does not have to issue a work certificate.

Another fixed-term contract

The employer is not obliged to issue an employment certificate when – immediately after the termination of a fixed-term contract – the same parties conclude another employment contract.

Under the previous legal status, an employment certificate had to be issued 24 months after concluding the first contract, even despite continuing employment. Currently, Art. 97 § 11 of the Labour Code states that: In the event of establishing another employment relationship with the same employee within 7 days from the date of termination or expiry of the previous employment relationship, the employer is obliged to issue an employment certificate to the employee only at his request, submitted in paper or electronic form (…).

This means that if we sign another contract with an employee, despite the fact that the previous contract has ended, we issue a certificate only at the request of that employee.

Transfer of the workplace to another employer

The second situation concerns the transfer of the workplace to another employer. Then we do not issue an employment certificate to those employees who have moved to another workplace on the terms set out in Art. 231 of the Labour Code.

In this case, even at the employee’s request, we do not issue a certificate for the period of work in the workplace taken over. For employees who continue employment pursuant to Art. 231 we issue a collective certificate. That is, it should cover employment before and after the transfer of the workplace to a new employer and be issued at the time of definitive separation from the company.

Deadline for issuing a work certificate – legal basis

Art. 97 § 1 of the Labour Code provides that the employer is obliged to issue an employment certificate on the day on which the employment relationship was terminated. In the same provision, we find a provision on the possibility of sending a certificate of employment within 7 days from the date of termination of the contract.

Some HR specialists are convinced that they have 7 days to issue an employment certificate. It should be noted, however, that the provision provides for the possibility of submitting the certificate only (and not issuing it) at a later date. The changes introduced in 2019 oblige the employer to prepare an employment certificate on the date of termination – no later.

If, for objective reasons, the employee or a person authorised by him/her cannot collect the document, it can be sent via the postal operator or in another way.

We may want to be tempted to insert an employment certificate earlier, while the employment is still ongoing. We often hear that Mr. X will, for example, be on Monday his last day at work and despite the fact that the contract lasts, until Saturday, he asks for the certificate to be prepared 5 days in advance. Unfortunately, the law does not provide such a possibility, so in such a situation let us refrain from providing the document to the employee. If he will not be able to collect the certificate in person, then, in accordance with the regulations, we can send it via the postal operator to the address indicated by the employee.

Let us always remember the most important information in all this: the work certificate must be ready on the day of termination of the contract. We only have an additional 7 days to hand over the finished document.

How to legally hand over a work certificate to an employee?

Once again we return to Art. 97 § 1 of the Labour Code, in which we will find information on how to provide the certificate.

  • The first option is to hand the document to the employee in person. The employee should acknowledge its receipt.
  • Another solution is to send the certificate to the employee to the address of residence indicated by him/her, via post or courier company (operating in accordance with the Postal Law and the definition of a postal operator). The document should be sent in such a way as to be able to prove the date of sending and receiving the letter by the former employee. This means that the certificate is best sent by certified mail or return receipt.
  • The document can also be issued to a person authorised by the employee.
  • Finally, the employment certificate can also be delivered in electronic form, on the day of termination of the employment relationship, at the initiative (or with the consent) of the employee, to the e-mail address provided by him/her for this purpose. Let us remember that the provisions of the Labour Code do not oblige the employee to provide the employer with his/her e-mail address.

Electronic form of the work certificate

The provisions of the labour law do not reserve a specific form for issuing a work certificate. Pursuant to Art. 781 of the Civil Code in connection with Art. 651 of the Civil Code, the electronic form of a legal act is preserved when the statement (including the statement of knowledge, which is a work certificate) was submitted in electronic form and provided with a qualified electronic signature.

Issuance of an incorrect work certificate and its correction

The correct issuance of an employment certificate has a huge impact on future entitlements (e.g. pension and disability benefits) or registration in the Labour Office as an unemployed person. That is why it is so important than the employee, after receiving the certificate, carefully reads its content.

In a situation where the employer issued an incorrect employment certificate, the employee has the right to apply to the employer within 14 days of receiving the document for a correction (Art. 97 §21 of the Labour Code). Both the employee and the employer can identify the error.

What if the employee noticed an error in the work certificate?

How should the process of correcting the certificate proceed if the employee noticed the error?

 

If the employer deems it reasonable to issue a revised document:

  1. The employee, in the submitted application, indicates errors that require correction. The deadline of 14 days for submitting the application is important. After exceeding the deadline, you can apply to the court to reinstate it (Art. 265 § 1 of the Labour Code).
  2. Within 7 days from the date of receipt of this application, the employer shall notify the employee – by paper or electronic means – of the application being accepted. In response, he writes the points that have been rectified (this is the so-called “cover letter”).
  3. Within the same period, the employer issues a new employment certificate to the employee. A new work certificate should a) be issued with the actual date of its issue, b) not contain annotations such as “correction”.

 

If the employer refuses to issue a rectification:

  1. The employee, in the submitted application, indicates errors that require correction. The deadline of 14 days for submitting the application is important. After this date, the employer has the right to refuse to issue the rectification. Nevertheless, the regulations do not regulate the consequences of failure to meet the deadline, and issuing a rectification should be in the interest of both the employee and the employer. After exceeding the deadline, you can apply to the court to reinstate it (Art. 265 § 1 of the Labour Code ).
  2. Within 7 days from the date of receipt of this application, the employer shall notify the employee – by paper or electronic means – of the negative consideration of the application.
  3. After receiving the refusal by the employer, the employee has the right to apply to the labour court with a request to correct the certificate within 14 days. The Labour Code does not mention this, but the lack of any response from the employer within the above-mentioned period should be treated as a refusal to issue a rectification.
  4. The statement of claim for rectification of the certificate is submitted by the employee to the District Court, in as many copies as there are parties to the dispute.
  5. If the labour court accepts the employee’s claim to correct the employment certificate, the employer issues a new employment certificate to the employee within 7 days from the date of the court’s decision in this case becoming final (§ 7 (2) r.s.p.).

What if the employer noticed the error in the document?

If the employer noticed it and found an error in the employment certificate, it is absolutely necessary – even years after the document was issued – to issue a new employment certificate as soon as possible. In this situation, we do not ask the employee to send a request for rectification and we make changes without his participation. All we have to do is inform the employee in the cover letter of the corrections made.

We send a new work certificate with the actual date of issue and ask for the return of the previous document. However, whether the employee returns them is only an expression of his/her goodwill, because he/she has no obligation to do so.

Important: When issuing a new employment certificate, the previous one must be destroyed, as the law provides for the possibility of issuing only two documents regarding the termination of the employment relationship, i.e. an employment certificate and a copy of the employment certificate.

Lost, damaged work certificate – what next?

An employment certificate – as the basic document confirming the length of service – is worth keeping. The content contained therein is the basis for determining employee rights.

However, it may happen that the certificate is destroyed or we simply lose it. In this situation, the employee has the option of applying to the former employer for a certified copy, duplicate, or copy.

The regulations regarding the preparation and issue of copies of employee documentation have been in force since 1 January 2019. So, first, let’s ask ourselves: What if a former employee asks us for a copy of an employment certificate?

In the current legal status – i.e. from 7 September 2019 – the employer, at the employee’s request, provides a copy of the previously issued employment certificate and marks it „for compliance with the document”.

Before September 2019, the provision § 6 of the Regulation of the Minister of Family, Labour and Social Policy of 30 December 2016 on the employment certificate (Journal of Laws of 2018, item 1289) – which provided that a copy of the employment certificate is kept in the employee’s personal file; in justified cases, the employer issues a copy of this work certificate to the employee – it was repealed by the regulation of the Minister of Family, Labour and Social Policy of 30 August 2019 amending the regulation on the work certificate (Journal of Laws, item 1709).

The change results from the fact that Art. 9412 was introduced to the Labour Code, which imposed an obligation on the employer to issue a copy of all or part of the employee documentation at the employee’s request. The detailed method of issuing copies of this documentation (including its form and date of issue) is specified in the provisions of § 18 r.d.p. The records show that if the employee documentation is kept by the employer in paper form, the employer issues a copy of all or part of the employee documentation (e.g. employment certificate) in paper form, bearing the signature of the employer or a person authorised by the employer, who confirms the compliance of the copy with the documentation employee. 

At the same time, in § 16 (3) r.d.p. the legislator indicates that the collection of employee documentation kept in paper form takes place in person and against receipt. Thus, the employment certificate as part of the employee documentation entitles both the employee and the former employee to receive a „certified” copy of the employment certificate only.

So a copy, or duplicate? We issue a copy of the employment certificate to an employee who has lost or destroyed a document. Since the provision of § 6 of the Ordinance has been repealed, i.e. it does not exist, it is not possible to prepare or issue duplicates of employment certificates. This also applies to those certificates that were issued before 7 September 2019.

Contract of mandate – will the contractor receive a work certificate after the end of the contract?

After the end of the contract of mandate, the contractor will not receive a work certificate.

Only persons employed under an employment contract receive the document. In this situation, the contractor may apply for a certificate on the period and type of work performed during the contract. Please note that this is not the responsibility of the Principal. Contracts of mandate are subject not to the Labour Code, but to the provisions of the Civil Code, which does not oblige to issue a certificate.

Failure to issue a work certificate on time or issuing an incorrect work certificate – consequences

According to Art. 99 of the Labour Code the employee is entitled to a claim for compensation for damage caused by the employer as a result of failure to issue an employment certificate on time or issuing an incorrect one.

Incorrect work certificate content

In the event of incorrect content of the employment certificate, the employee is entitled to compensation in the amount of remuneration for the time of being unemployed for this reason – but no longer than 6 weeks. It is the employee’s responsibility to prove that, despite the efforts made, he/she could not find a new job, and the reason was the lack of an employment certificate (or incorrect content of the employment certificate).

Failure to issue a work certificate

If the employer fails to issue an employment certificate on time, he/she commits an offense against the employee’s rights, for which the legislator has provided for a fine of PLN 1,000 to PLN 30,000 (Art. 282 § 1 point of Labour Code).

As you can see, reliable keeping of employee records is an important part of running a business, and ignorance of the regulations – and, for example, lack of knowledge about the need to inform the employee about the acceptance or rejection of the application for rectification of the employment certificate – can cause many unnecessary problems. Therefore, for entrepreneurs who want to focus primarily on the most important aspects of running a business, we recommend our HR and payroll outsourcing service.

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HR & Payroll Senior Specialist

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