05
/04
The team of Law Company Colares (ЮК «Коларес») successfully protected the interests of the Junior sports school in a long-term labour dispute with an employee.
It’s not a secret that the main, if not the only, cause of any disputes emerging, including the labour ones, is money. After all, in most cases it is money that make the employee to go to the court while submitting a claim against the employer. Herefrom, also the circumstances which are most frequently complained about or which the employees try to complain about in the court are bases and the order of their quitting, or the size of their wage, or allowances, as here namely one can try to ‘earn’ adds, though, pity, frequently unlawful ‘light’ money. Of course, we shouldn’t say that all employees appealed and appeal to court with claims about the cause of their dismissal, or claims against these or those actions or nonfeasance of the owner or administration of the enterprise that violate the employee’s rights or worsen the conditions of their work, use unlawful methods and are guided by questionable motives. Of course, we all know that the crisis pushed the employers to practice the maximal saving, and first of all, namely by cost of employees what often was done and is done, sometimes by rather unlawful methods. However, as judicial practice shows, often the employees still practice blackmailing or cheating having an aim of pressure on administration of the enterprise or the owner. At a proper putting of accents, on condition of knowledge and corresponding use of the regulatory and legal acts of the state that regulate the mentioned sphere of social relations, an experienced lawyer may effectively withstand to unjustified encroachments and to protect the employer. Proceeding from the above, an indicative example is consideration of a claim of citizen ‘A’ from the Children’s and Youth Sports School by Obolonskyi District court of Kyiv city: In September 2015 citizen ‘A’ (herein after as the claimant) appealed to the court with a claim to the defendant – The Children’s and Youth Sports School. In the justification of claim ‘А’, he referred to the fact that he reached the 60-year age, in connection with what, with reference on the order of the profile Ministry (order of the Minmolodsport of 23.09.2005 No. 2097) and according to the Collective labor agreement and the Regulation about bonus award of the employees, he had to be awarded with a bonus in the size of an official salary on the occasion of the anniversary. Also, the claimant demanded to fix him an allowance ‘for high achievements in work’ which, in opinion of the claimant, belonged to him on the right, whereas, the effectiveness of training work of the Children’s institution rose under his direct leadership, and beside that, during the claimant’s time of work the defendant in position had to him no warning or other disciplinary penalties. The claimant addressed to the director of the Children’s institution as for payment of the bonus and allowance, but the last explained the failure to pay due to the limited funding of the Children’s institution. As the defendant did not make a timely payment of the bonus and charging of an allowance, as a result of what an arrears of money was formed, and the claimant believes that he had to be charged with a compensation for loss of some part of income (indexing) and 3 % per annum for all debt overdue. Repeatedly, the claimant changed his claim requirements, finally asked the court to make the defendant pay the claimant his bonus ‘to the 60-year anniversary’, fulfil a recalculation of the claimant’s wage since the 1st of September, 2015 with account of an allowance to the official salary ‘for high achievements in work’. As well as, to oblige the defendant to calculate compensation for loss of some part of income (indexing) and 3 % per annum for all debt overdue on the wage owed from the 1st of September, 2015. Considering the debt sum on the day of its payment, to collect from the defendant UAH 25 000, as in compensation for non-pecuniary damage. In the court session the defendant’s representative asked to refuse in satisfying of the claim requirements in full. To substantiate the objections the defendant’s representative drew such arguments, as follows: In accordance with the Statute of the Children’s institution, the director sets salaries, determines the system of wages, sets allowances, bonus, awards and gives a financial maintenance to employees, within the staffing schedule agreed upon with Founder and in compliance with the legislation. In accordance with the Regulation about bonus awards of the employees of Institution for the main results of activity approved by the director of the Children’s institution, the employees of Institution may be awarded with bonuses in connection with anniversaries, on birthdays, with a professional holiday of the Day of Athletics and with a retirement release. On the Law of Ukraine “About salaries” (Part 2, Article 2 “Structure of salaries”) the fund of salaries comprises both the main (salary, rate of the salary), and additional wages. Article 15 of the law of Ukraine “About salaries” predetermines that the forms and the system of salaries, labor standards, prices, tariff grids, salary schemes, terms of charging and sizes of allowances, surcharges, bonuses, rewards and of other encouraging, compensatory and warranty payments are set up by the enterprises in the Collective agreement with compliance of norms and guarantees forseen by the legislation, as well as general, sectoral (intersectoral) and territorial agreements. In accordance with the legislation, establishment of allowances to the salary of the deputy director of the establishment is executed on the decisionм of a higher level organ within the available funds for paying salaries. Payment of such an allowance without an appropriate coordination is considered to be a violation. In accordance with the order of the profile Ministry, allowances to employees are foreseen, including for high achievements in work, but this allowance is not of an obligatory character, for example, an allowance for a special contribution into provision of a highly qualified training process of highly skilled athletes to the national teams of Ukraine which is set up to ​​the claimant. The system analysis of the above norms of the law gives a possibility to make a conclusion of the court that an extra wage, namely: paying the bonus to an employee, in connection with anniversaries, on birthdays and setting up of an allowance for high achievements in work, is the right of the employer, but not a duty. Having listening to both sides, their provements and arguments, the court didn’t find any judicial grounds for satisfaction of these claims, concerning an obligation of the defendant to pay the bonus to the 60-year anniversary of the claimant, to fix and to recalculate the wages with account of an allowance for high achievements in work in addition to the claimant’s salary, as well as for collection of any indemnification of loss of some part of the income and compensation for non-pecuniary damage. Thanks to a clearly formed and justified legal position of the defendant’s representative, the claim wasn’t satisfied.