Case 7: “Waiter”

Wednesday, 21 January 2015 15:34

Problem:
Having an experience of work in this position I. agreed to work with the payment in envelope in another food company from the town on the condition accepted by the employer to increase his salary after two months of activity, but not specifying which will be the % of salary growth. I. was recommended to this employer, which made the young man to believe that his previous experience will be a credible argument for a salary increase.

Currently I. is already working for 6 months with an insignificant increase to the salary only after the second month, the reason being that it is the summer season when most of the clients are on vacation and the company is not working on full capacity, and another reason of very large expenses that are supported by the employer for the extension of premises. I. doesn’t start the discussion about increasing the promised increase nor does he see other solutions to the situation in which he found himself.

Solution:
Individual employment contract is a guarantee both for the employer and for the employee, by which the employee undertakes to perform work in a particular specialty, qualification or function, to respect the internal rules of the unit and the employer is obliged to ensure working conditions provided by the Labour Code, other normative documents containing norms of labour law, collective labour contract as well as to pay the integral salary on time. In the absence of the individual employment contract, the employee is not protected from the employer.

Case 6 “Hairdresser at a barber shop”

Wednesday, 21 January 2015 15:33

Problem:
After graduating from vocational school, V. was invited to work at a barber shop where she practiced being a student. The Patroness, who invited her, told that she worked on the basis of entrepreneurial patent and agrees without an employment contract to provide a working space with the chair for client, necessary equipment, consumables retaining 50% of the incomes which will be accumulated monthly. V. agreed justifying that does not have experience and her customer base for the time being. In two months the patroness told that she will retain 60% of the salary, because she does not have clients and she had started the expenses for utilities in winter.

V. has been working another 2 months under these conditions then she called her mother to help her in negotiating easier conditions. As a result of discussions the patroness offered the last salary on the same conditions, retaining from her an amount for consumables (hair dye, shampoo etc) spent on services provided to clients for which she received payment at that time.

Solution:
According to article 3, the patent holder has no right to employ workers for entrepreneurial activity specified in the patent. And in the absence of an individual employment contract, which provides the size of salary and other guarantees, the employee is not ensured by any employer's illegal actions.

Case 5: ”Porter at a warehouse”

Wednesday, 21 January 2015 15:33

Problem:
Father brought V. to a wholesale warehouse where he was working, to work as a porter. He was assigned to work in a warehouse with the other two workers, colleagues elder than he was. His colleagues urging him to learn the work more and more were leaving particular works, especially at the end of the day when they could not be supervised by bosses.

V. consciously worked for the same salary as colleagues. Moreover he was sent to buy beer for them during the lunch hours. Gradually V. began to fulfil some work for the other two colleagues. Telling his father about this he asked his colleagues to explain all this. Colleagues were able to convince his father that there was nothing seriously between them, but they managed to put V. in some humiliating conditions, following a scuffle between them. V. left the job after receiving his salary telling his chief about what happened. The chief did not stop him, nor did he seek to analyze or resolve the incident. 

Solution:
According to the Labour Code, any discrimination, direct or indirect, of the employee based on sex, age, race, colour, ethnicity, religion, political option, social origin, home, disability, HIV/AIDS, trade union activity or membership and other criteria unrelated to his professional qualities, is prohibited. At the same time, employer obligations ensure respect for employees’ dignity at work.

Case 4 “Maidservant in 2 foodstuff stores”

Wednesday, 21 January 2015 15:32

Problem:
M. who educates alone two children, was employed illegally working "per hour" as a maid-servant in a commercial unit and had to work in shifts. At first the employer was requested by M. to establish a working program for her in order to manage to do the same work in another nearby store. M.’s conscious and qualitative work was appreciated according to her expectations - during 3 consecutive months she received her salary in time + food packages consisting of pasta, cereals, canned, oil to which the term of validity would expire in a short time or had already expired.

M. was reconciled with this monthly "charity", which provided her family more or less with mentioned products. Believing that "the question is not to be blamed" asked the second patron if he could also offer her food packages. The second has notified the competent authorities for consumer protection declaring charitable actions of his competitor. In a short time M. was asked by one patron to leave because as he said, the quality of the cleaning services offered by Maia was not sufficient.

Solution:
According to article 86 of the Labour Code, dismissal, that is termination of the individual employment contract of unlimited duration as well as of limited duration on employer’s initiative - is allowed as well in case where it is found that the employee does not correspond to the position held or work performed as a result of insufficient qualification, but this will be confirmed by the decision of committee on certification.

Case 3: ”Unskilled worker in construction”

Wednesday, 21 January 2015 15:31

Problem:
R. agreed to work illegally at a construction company from the district as unskilled worker. Asking what monthly salary he will receive he was told that he will be paid „the same as all the other guys working in the company”. Asking the „guys”- his colleagues, also unskilled workers, he received different answers. R. worked hard waiting for the end of the month. Handing him the deserved salary the chief explained him that that month his salary was reduced by 10% than that of his colleagues, because he was going to buy him overalls on this money, that didn’t happen with the other colleagues. Discussing with his colleagues R. found out that their salaries were not reduced for buying overalls. The other colleagues used clothes brought by them every day from home.

Solution:
In accordance with article 71 of the Labour Code, undeclared work is forbidden, that is any work performed by a natural person for and under the authority of an employer not respecting the provisions of the Labour Code concerning the conclusion of the individual employment contract. However, in accordance with Health and Safety Law at work, no. 186 of the 10.07.2008, the employer is obliged to provide for free personal protective equipment for the employees, including new personal protective equipment in case of its degradation or of loss of protective qualities.

Case 2: “Apprentice cook”

Wednesday, 21 January 2015 15:30

Problem:
Having the qualification of a cook, M. addressed to the local bar to be employed initially as a scullion. Working in this position illegally with her agreement, M. also performed the work of waiter - barmen for a small supplement to her salary. Selling alcoholic beverages to customers she was the main suspected person for the lack of a quantity of alcohol intended for sale. Waiting for the end of the week without requiring explanations or arguments the patron detained the amount of about 30% of her small salary for the missing goods. M. could not demonstrate that she was not involved in this fraud.

Her „older” colleagues working in this bar have "whispered" her that this action is a strategy frequently used by the patron to compensate her modest income from her business that is less desired in the locality. Moreover, female employees are forbidden to discuss among themselves on the mistakes made within the work, including any subjects related to the patron.

Solution:
In accordance with article 333 of the Labour Code, the employee is obliged to compensate the material damage caused to the employer if the labour code or other normative acts don't foresee otherwise. In determining material liability, the damage to be repaired does not include lost profit by the employer as a result of the act committed by the employee. If the material damage was caused to the employer by an act that encompasses the signs of corpus delicti, liability is determined according to the Criminal Code.

However, according to art.342 and 343 of the Code, until issuance the order (provision, decision, judgment) on compensation for material damage by the concerned employee, the employer is required to carry out an internal investigation to determine the size of material damage caused and the causes of its appearance. For the investigation, the employer has the right to create, by order (provision, decision, resolution), a committee with the participation of specialists in the field. To determine the causes of material damage it is obligatory to request a written explanation from the employee and if he refuses to present, it will be registered in the minutes signed by a representative of the employer and concerned employees.

Withholding the amount for the material damage that does not exceed the average monthly salary from the guilty employee is made by order (disposal, decision) of the employer, which must be issued within one month from the day of assessing damage size. If the amount of the material damage that is to be retained from the employee exceeds the average monthly salary or if it was missed that period, the withholding is done according to the decision (judgment) of the court.

If the employer does not comply with the established way for compensation for material damage, the employee is entitled to apply to the court. Moreover, in case of divergences on how to repair the material damage, the parties are entitled to appeal to the court within one year from the day of determination the damage size.

Case 1: “Employed as unskilled worker in agriculture”

Wednesday, 21 January 2015 15:28

Problem: 
I. told this case being already for two years employed in that qualification in a Limited Liability Company. Having just finished gymnasium studies, I. was a daily worker following the example and urged by his parents until he would reach the age of majority in order to be hired legally and sustainably. The employer's explanation that at the age of 17 years old is illegal to be legally employed, I. has agreed to receive the pay in envelope until the age of 18. Thus he worked a year with different wage, being motivated by lack of the volume of work depending on season.

When he was 18 years old, at his request to have an opened working card he was employed as an apprentice with probation period for three months. The employer established him the share of 0.75 % of the salary that he received by performing the same work as before. The employer explained that the amount of the retained 0.25% will be used to pay taxes by the employer. After the expiration of that term he was transferred to another job in the same company, the reason being that there would be easier. Finding out that the young man planned to go abroad for a better paid job the employer convinced him to work as before, without labour contract, until he leaves the country.

Solution:
In accordance with article 47 of the Labour Code of the Republic of Moldova, an individual employment contract should be concluded between employer and employee, the person (employee) acquires the working capacity at the age of 16, moreover, the person may conclude an individual employment contract even at the age of 15 years, with the written consent of parents or legal representatives, if accordingly, there will be not threatened his health, development, education and training. Therefore, the employer's refusal to sign an individual employment contract on the grounds of not achieving the age of 18 was unfounded.

Regarding the employment without concluding an individual employment contract, is mentioned under art. 7 of the Labour Code, undeclared work is forbidden, that is any work performed by a natural person for and under the authority of an employer not respecting the provisions of the Labour Code concerning the conclusion of the individual employment contract. 

At the same time, art. 55 of the contravention Code provides penalties for the use of undeclared work , for each identified person a fine of 100 to 150 conventional units for individuals, a fine of 250 to 350 conventional units for persons holding responsible positions, a fine of 350 to 500 conventional units for legal entities.