Of interest.

Employee´s legitimate refusal to go on a business trip and compensatory wage

The Supreme Court of the Czech Republic, in its recent decision dated October 9, 2018, f.n. 21 Cdo 1561/2018 dealt with the below-specified issues in the field of ​​labour law in relation to the instruction of an employee to go on a business trip abroad, namely in truck transport.

Solved issues

The Supreme Court in this decision considered the questions whether (i) the employer is in any event obliged to take into consideration employee´s legitimate interests when giving him an order to go on a business trip, even if the instruction is a major feature of the performance of the agreed type of work; (ii) such a legitimate interest of the employee could be his personal involvement in the proceedings of a court, even that this employee is legally represented by a lawyer, and (iii) it may be charged to the employee’s account that he refuses to go on a business trip due to fact that set of working conditions are not in comply with the legislation.

In particular, the Supreme Court dealt with the interpretation of the provision of Section 153 (1) of Act No. 262/2006 Coll., The Labour Code, as amended (hereinafter the “Labour Code“), according to which the employer shall determine “the conditions which might have impact on the reimbursement and the amount of travel expenses, in particular the period of a business trip, the place of start and termination of a business trip, the place of performance of the working tasks, the mode of transport and accommodation; taking thereby into consideration the legitimate interests of the employee concerned”.

The subject of the dispute between the employer and the employee (job position: the truck driver) was the fact, whether the employee could have been entitled to repeatedly refuse to go on a business trip and, if in such a case was he entitled to a compensatory wage during that period (no other work was assigned to the employee during same period, although he was properly prepared for its performance).

Facts of the case and resolution of the Supreme Court

In the first case, the employee refused to go on a business trip from January 3, 2016 to January 23, 2016, on the grounds that on January 6, 2016 two court proceedings concerning previous disputes between same parties had to be held and the employee himself wanted to attend them personally.  However, at the same time the employee asked the employer to be instructed to go on a foreign business trip only at a later date.

The Supreme Court concluded that the employer’s actions (in the context of the term of the foreign business trip) were entirely purposeful and therefore did not found the employee’s refusal to go on to a business trip as a breach of the employee’s obligations arising from an employment relationship (moreover the Labour Code guarantees to an employee time off, within the necessary extent, to enable him the exercise of civic duties, such as a hearing in a court proceedings). When an employee cannot perform the contract of employment duties only on the basis of a reasons on the part of the employer, then we talk about “other obstacles to work of an employer’s part” within the meaning of Section 208 of the Labour Code, and in such a case, the employer shall pay the employee compensatory wage in the amount of average earnings. The Supreme Court also found that everyone has the right to participate during a hearing in the court proceedings, regardless of whether or not he is legally represented by a lawyer.

In the case of remaining employer’s calls to go on a foreign business trips between the March 11, 2016 and April 9, 2016 and between the June 3, 2016 and June 26, 2016, to which the employee refused to go on the ground of  not having be provided accommodation for the normal weekly rest period as well as not having be provided with the information of the way of payment of accommodation, having regard to Article 8 (8) of the European Agreement concerning the Work of Crews of Vehicles engaged in International Road Transport (AETR), the Supreme Court also found that if the employer persisted at the order to an employee of taking a weekly rest period in the parked vehicle (in the cabin of the his truck), despite the employee’s notice that this action is in breach of the relevant legislation, then the employee was not obliged to go on such a business trip, as there could be a breach with the applicable European Union rules on compliance with the minimum daily and weekly rest periods.

Given the fact that no other work corresponding to the employee’s contract of employment was assigned to this employee during these periods, although he was properly prepared for its performance, again we talk about other obstacles to work of an employer’s part” within the meaning of Section 208 of the Labour Code, and in such a case, the employer shall pay the employee compensatory wage in the amount of average earnings.

The Supreme Court did not agree with the employer’s objection concerning the determination of an accommodation in advance (even in writing form) before the start of the business trip and information given the employee about the possibility of finding an alternative accommodation (i.e. accommodation other than the cabin of the truck) on the grounds that “in the present case the employer has truly determined the conditions of an accommodation in advance in writing form, but in a such way that the employee (if he had follow the employer’s instructions for accommodation) would have breach the legislation, which means that the employee was entitled to refuse to go on a business trip (thus the employee is not obliged to actively seek other alternative accommodation).”

Conclusion

Within the meaning of Section 153 (1) of the Labour Code the employer shall, in any event, take into consideration the legitimate interests of an employee where the conditions in this provision also include the determination of the specific conditions of the period of commencement of the business trip and the length of its duration, when period of commencement shall take into account the employee’s interest in participation in hearing in a court proceedings even if the employee has in such a proceeding his own legal representation. Although the employer is under no obligation to respect any employee’s interests, it is essential that the determined conditions of the business trip shall be in comply with the legislation.

The employee’s refusal to go on a business trip is admissible under certain circumstances (e.g. the illegal conditions of such a business trip) and if the employer would not assign the employee any other job in accordance with his employment contract during that period, the employer shall pay the employee compensatory wage in the amount of average earnings.

It is possible to conclude and recommend to the employers the necessity of prudence when setting the conditions and issuing instructions to employees to go on a (foreign) business trips. The employers must take into account the legitimate interests of the employees and all the rules and conditions arising from the legal (and possibly internal) regulations and the collective agreement.

 

Mgr. Ondřej Čala, junior lawyer – cala@plegal.cz

Mgr. Jakub Málek, partner – malek@plegal.cz

www.peytonlegal.cz

 

06. 03. 2019

 

 

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