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Can the commercial proxy of a company be fined for not granting the employee’s holiday leave, non-payment of wages on time or failure to issue an employment certificate on time?

In the time of the SARS-CoV-2  virus pandemic, many entrepreneurs have been forced to dismiss some employees, and it is likely that some of them are currently not performing their obligations under the Labour Code properly, for example in delaying the payment of wages. Whatever the imposition of a penalty notice on an employer, who is a natural person, does not appear to be particularly troublesome for a Labour Inspector, however, when the employer is a legal person, some difficulties with appointing a person to whom such a penalty notice can be handed over may arise.

According to the law, a penalty notice may be imposed on an employer (natural person) or a person acting on behalf of the employer, as offenses such as those referred to in Art. 281 or art. 282 of the Labour Code (Kodeks Pracy) may be committed  by a person, who is obliged to exercise the labour employee rights indicated therein.

Therefore, in order to impose a penalty notice on the independent proxy of a limited liability company (spółka z o.o.),  it is first necessary to  determine whether in matters of labour law, he is a person acting on behalf of the employer. This only happens when he/she  is under an obligation to exercise employee rights. The manner of representing the employer in matters related to labour law, as defined in Art. 31 of the Labour Code (Kodeks Pracy)  takes precedence over company law regulations.

Thus, in employment relationships, the representation of an employer, who is a capital company, does not have to be the same as the representation resulting from entries in the National Court Register (Krajowy Rejestr Sądowy), and it may be shaped differently. The above is confirmed by the case law of the Supreme Court, for example in the resolution of 5.3.1996, I PZP 2/96.

As a consequence, a limited liability company (spółka z o.o.) might be represented in a labour law cases by a person appointed pursuant to Art. 31 of the Labour Code (Kodeks Pracy), and not a commercial proxy.

It is also worth pointing out that accepting a penalty notice from the hands of the  Labour Inspector may constitute a simultaneous admission of guilt. The accepted penalty becomes final, which means that after accepting such a penalty, the possibilities of proving that the criminal offence was not committed are low. Final penalty notices, and accordingly accepted, might be challenged only in the manner provided for in Art. 101 of the Code of Conduct for Offences (Kodeks Postępowania w Sprawach o Wykroczenia). When accepting a penalty notice, it should be borne in mind that the catalog of reasons for the extraordinary repeal of a penalty notice is not at all wide and the issue of causation  is not examined at this stage.

Therefore, if you are an independent commercial proxy of a capital company, a member of the management board of such a company or a person on whom the Labour Inspector may impose a penalty notice, consider twice whether you should actually accept such  penalty, and if you are not sure, contact us and  we will try to dispel your doubts immediately.