Publications

“High standards of professional work.” (IFLR1000, 2017)

03.05.2020

Obligation of the employer to justify the determination of idle

iTiesības published an article by Sintija Radionova, partner of PRIMUS DERLING, and Laura Skromule, Senior Associate of PRIMUS DERLING which describes obligation of the employer to justify the determination of idle.

The article will address the judgment of the Supreme Court Department of Civil Affairs of the Republic of Latvia of 28 November 2019 in Case No. SKC-1075/2019, in which the Senate concluded that the second paragraph of article 74 of the Labour Law does not allow for the employer not to employ its employee because of the employer’s arbitrary and subjective will as well as  that the employer’s behaviour in determining the idle must be justified by objective circumstances.

The application was based on an order issued in July 2017 whereby, on the basis of Article 74 of the Labour Law, the employee is not employed, thus retains the salary. The employee (claimant) brought an action before the Court on the grounds that the order infringes the right to work and decent working conditions. The claimant indicated that an idle may be based on objective circumstances, but does not exist in the present case as the claimant’s work duties are carried out by another person and who receives a salary for it. The claimant emphasized that the employer prevented the claimant from fulfilling his or her duties, which in the employee’s view discredited the assessment of their other employees, as well as deprived the claimant of the experience, to be in the labour market business, as well as to use his or her skills and qualifications.

The Regional Court dismissed the action entirety. The claimant lodged an appeal against the judgment and requested the Court of Appeals to declare the claimant’s idle unlawful and annul the order issued by the employer.

The Court of Appeal joined the Regional Court and dismissed the action entirety, stating that the claimant’s view that the employer withdrew from the contract of employment or suspended the operation of the contract was unfounded. The Court of Appeal has concluded from the employer’s explanations that the employer shall perform his or her obligations arising from the contract – pay the remuneration, grant annual paid leave and provide other benefits due to him or her under the contract. The Court concluded that the order issued had clarified the agenda and the employee’s obligations, as well as the employee’s claim that his legal position had deteriorated.

The Senate ruled that the case should be brought before the Court of Appeal, since it misinterpreted the meaning of the second paragraph of Article 74 of the Labour Law, stating that it provided for the employer the right not to be employ its employee in a situation where the idle is paid. Such understanding does not conform to the conditions governing the legal composition of the second paragraph of Section 74 of the Labour Law. The Court of Appeal did not ascertain the circumstances for which the employer did not provide the applicant with the work.

This judgement contains two essential elements of the Senate:

  • The nature of the employment relationship is the pursuit of work, which means that the employer’s behaviour in determining the idle must be based on objective circumstances, rational and verifiable considerations. The provisions of the Labour Law preclude the employer’s arbitrariness by applying idle conditions in circumstances where it does not exist objectively and, instead of an employed staff member, the performance of those works is actually carried out by another employee.
  • The employer must distinguish the idle from cases where the employer has the right to sustain the employee from work. In the present case, the employer himself had admitted at the time of the trial that he wished to dismiss the employee from his work, considering that the suspension might harm the employer’s interests, but wished to avoid any possible suspension, during which no wages were paid under the first paragraph of Article 58 of the Labour Law, in the context of challenge to the court, so that the idle was established. Such an employer’s argument does not invalidate the criticism because, as the Senate has already acknowledged, the idle must be based on objective circumstances, and the idle tool is not applicable to the objective of not placing the employee on the job for certain specific reasons.

The full article in latvian available here