A Polish caregiver associated in our union in Germany legally wins the lawsuit against the employment agency Soft Care 24 Stunden! The court found that the parties were bounded by an employment relationship, not a civil law contract, and decided that the agency was to pay our member nearly 12.5 thousand euros. This is an important sentence for all Polish caregivers employed by agencies!
The contract provided by the agency and the our unionized caregiver stated “an agreement for the performance of recruitment, promotional and advertising activities as well as care services”. In fact, however the agreement was about delegating the Plaintiff to work in Germany as a caregiver for an elderly person. The “recruitment, promotional and advertising” activities indicated in the contract were never performed by the caregiver, therefore the contract was of an apparent nature and its sole goal was optimization in scope of caregiver’s insurance employment cost. The Agency paid carer’s social security contributions based on a grossly undervalued basis while the rest of the salary was declared as allowances or other costs related to the delegation. Those measures were undoubtedly intended to reduce the basis for the calculation of social security contributions, what consequently resulted in the lack of adequate protection for the worker.
During the term of the contract, caregiver’s activities were provided in one place, at the address provided by the employer, and to the person indicated by them. The carer was obliged to keep the employer informed, regularly report the activities performed under the contract, and the number of hours worked was recorded and confirmed in the time sheet. In other words, the care activates had all the features of a full-time job.
The basis for the carer’s monetary claim against the agency was the minimum wage for work in Germany, which amounted to 9.35 euros per hour.
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