The appearance of an employment contract in the case of external employment

Abstract

The appearance of an employment contract requires a secret agreement between an employer and an employee regarding the simulated activity. It is unacceptable to require an employee to speculate what the actual intentions of the employer are. Employee’s consent to the simulated activity needs to be unquestionable. Moreover, it is incorrect to assume that an employee agrees to an apparent employment relationship once he or she enters the contract in good faith by performing work for a third party. The fact of performing work for a benefit other than that of an employer, assessed ex post, may lead to modification of the contract. Rejecting of this perspective in order to invalidate the employment contract due to the suggested appearance should be considered an error in application of law. In particular, in permanent legal relationships, an adaptive interpretation should be conducted, accepting changes that happened in legal relationships over time, including modifications expressed in objectively assessed behavior of the parties to the contract and other persons.