The Social Insurance Institution is increasingly initiating inspections to prove that an employee is not subject to insurance because the employment contract was concluded for mere pretence. As a result, the Social Insurance Institution refuses to pay benefits or obliges them to be reimbursed.
Appearance of an employment contract – the decision of ZUS
The beginning of the entire process is usually a notice to the Social Security Administration to initiate an investigation to determine whether the employee (insured) is actually performing work. In the course of this investigation, the authority usually calls for answers to a series of questions that concern, among other things, the activities of the workplace, the period and the manner in which work was provided. It often happens that the result of these actions is that the Social Security Administration issues a decision that the employee is not subject to social insurance due to the ostensibility of the employment contract. In a word, the authority concludes that the contract was not actually performed and was not concluded for the purpose of providing work, but only to enable the insured to benefit from insurance (and benefits such as sickness or maternity benefits).
Defense against Social Security charges – ostensibility of an employment contract
What steps can an employee take if the Social Security Administration determines that his employment contract is a sham and therefore he is not subject to insurance?
Such a decision by the Social Security Administration can be appealed to the district court by both the employer and the employee. This must be done within 30 days of receiving the decision. At this point it is worth noting that ZUS letters are not registered mail, which means that they are usually placed in the addressee’s mailbox without confirmation of the date of delivery – this can make it difficult to determine when the employee actually received the decision. However, this is not a hindrance, it is sufficient in the appeal to cite the date on which the package was removed from the box and consider that this was the beginning of the deadline for filing a complaint.
What arguments will be helpful in proving that the employee actually performed official duties? First of all, it is worth submitting to the court personnel records, related to, among other things, confirming the employee’s attendance at the workplace, vacations granted to him, referring him for medical examinations.
If the employee does not have access to this type of documentation, it is worth requesting in the appeal that the court oblige the employer (who will be a participant in the proceedings before the court anyway) to present it. It will also be very helpful to demonstrate the effect of the work undertaken by the employee. The catalog of evidence is not closed, so you are free to use photos of company events, documentation indicating the employee’s participation in a particular project, testimony from co-workers or superiors.
Appearance of an employment contract – possible consequences for the employee
When an employment contract, and therefore a title to insurance, is undermined, a situation may arise in which the Social Security Administration denies the employee’s right to benefits (e.g., sickness or maternity benefits), or withholds their payment or obliges them to return the benefits with interest, respectively.
This is one of the most common consequences of a sham decision in law firm practice – a separate article available HERE is devoted to this problem. Therefore, it is very important to react appropriately and challenge the received decision on not being subject to insurance within the stipulated period.
W ostatnim czasie Zakład Ubezpieczeń Społecznych dość często wszczyna postępowania wyjaśniające, których efektem bywa wstrzymanie wypłaty zasiłku bądź zobowiązanie do zwrotu zasiłku wraz z odsetkami. Poniżej zaprezentowano środki ochrony przysługujące ubezpieczonemu w takiej sytuacji.
