Portfolio Gallery: Publications - Employment Law

PUBLICATIONS 

Duties of Employers in Cyprus

There are several duties that employers owe to employees under Cyprus employment law. The duties derive both from statute as well as the common law  and they aim at securing the employee’s salary, safety and well being in the workplace. The duties owed by the employer are the following:

  • Duty of the employer to pay wages

The primary duty of the employer is pay the employee wages/salary. This duty is self-explanatory as it is the main consideration provided by the employer in exchange for the services offered by the employee. This duty has been now codified by The Wage Protection Law (hereinafter “L. 35(I)/2007”).

L. 35(I)/2007 provides that the wages/salaries of the employee may be paid in cash, through bank transfer or through check or banker’s draft. Wages can be paid in kind provided that such payment is (1) customary in the specific sector or profession and (2) it is beneficial to the employee or his family, (3) the value of the goods provided is fair and reasonable and (4) in every case the employee consents to payment in kind.

If payment of the salary is made/effected in cash, then it must be made during working hours, at the place of employment (or near the place of employment) unless otherwise provided in any another law, regulation or collective agreement.

Section 9(1) of L. 35(I)/2007 states that the wages must be paid at least weekly, but in cases of an employee paid monthly, the wages must be paid monthly.

The salary must be paid directly to the employee except in cases where the employee has given his consent for the wage to be paid elsewhere.

No deductions are allowed from the wages unless authorized by any Law, Regulation, a Pension Fund, a Provident Fund, a Court Order or being set-off as damages caused to the employer purposively or by the gross negligence of the employee. Finally, deductions which are made with the consent of the employee are permissible. In all of these cases the deductions are limited to the point where the employee is left with a sufficient amount in order to cover his basic needs and those of his family.

In case the employer breaches the provisions of L. 35(I)/2007, section 20(1) states that the employer is liable to a fine or imprisonment or both.

  • Duty of the employer to exercise reasonable care for the health and safety of employees

This duty is owed to the employees. The standard of care is “the care which an ordinary prudent employer would take in all the circumstances”.

Breach of this duty amounts to a breach of contract and constitutes grounds for constructive dismissal.

A very interesting case is that of Waltons & Morse v Dorrington where an employee complained because her co-employees were smoking in the work environment, making it an unhealthy place for her to work in. The employers didn’t take any measures to remedy this and she therefore resigned claiming successfully in Court, that she was constructively dismissed.

The duty of care of the employer is multi-faceted. Firstly, the employer is responsible for providing safe plant and equipment. Secondly, he must provide a safe place for the employees to work. Thirdly, the employer must provide a safe system of work, meaning that he has a duty to ensure that the methods used to undertake the work are safe (i.e. through the use of protective gear, warning signs, safety training etc). An interesting case is that of Manthopoulos Plastics v Hadjiiosif. In this case, the employee was instructed by his employers to remove a very heavy iron bar together with another employee and in the course of doing so the bar fell and crushed the fingers of his right hand. The iron bar, was of significant weight and was dangerous to remove. The employee who was 28 years old at the time, sustained several injuries and fractures to his hand, fingers and fingernails. His injuries were initially painful and a complication developed on his middle finger causing him prolonged discomfort and inconvenience. Although he could use his hand, he had difficulty in executing precision finger movements. The Supreme Court, in upholding the First Instance Court, concluded that the employer breached his duty and stated that:

“It is the employer’s duty towards his employees to provide a safe system of work which includes the provision of competent staff of men, suitable machinery for the work, adequate supervision of the work and safe premises for work. The duty includes both the establishment as well as the enforcement of such a system by means of adequate directions and the mode of its operation without this meaning that the employer must decide on every detail of the system of work or mode of operation. In the present case, from the evidence adduced and as accepted by the learned acting President, we find ourselves in agreement with him that the appellants had failed in the discharge of that duty inasmuch as the method used by them for moving this heavy iron bar by two men alone was not a reasonably safe one. By doing so he subjected his employee to a risk that he could reasonably foresee and against which he could guard by measures such as the engagement for the purpose of the removal of that bar by more persons or by mechanical means. The convenience and expense of which were not entirely disproportionate to the risk involved.”

 

Fourthly, the employer must provide his employees with competent fellow employees. In the case of Hudson v Ridge Manufacturing Ltd an employee suffered injury due to another employee engaging in horseplay. The latter usually engaged in horseplay, practical jokes and tripping other employees but the employer, having knowledge of this, failed to take any action to discipline the misbehaving employee. For this reason, the employer was held liable.

It should be noted that the duty of care cannot be delegated to others.

  • Duty of the employer to provide references

The employer is under a duty to provide references for ex-employees at their request. The references should in general be fair and accurate and they should not include anything detrimental to the employee.

  • Duty of the employer to provide a grievance procedure

It has further been established that the employer has a duty to set a grievance procedure in place, as for example in cases of sexual harassment complaints.

  • Duty of the employer of mutual trust and confidence

The duty of mutual trust and confidence (also known as the duty to cooperate) is the duty of the employer not to engage unreasonably in conduct which is calculated or likely to destroy or seriously damage the relationship of confidence and trust between the employer and the employee. The duty includes cases where the employer engages in dishonest conduct (even if this is not aimed at the employee).

  • Duty of the employer to indemnify the employee against any expenses and losses incurred in the course of employment 
  • Other statutory duties owed by the employer.

These include the provision of a safe system of work (see above), duty to provide annual holiday leave, social insurance contributions and appropriate notice in case of dismissal (where this is appropriate).

Finally, it must be remembered that employees also owe duties to their employer. Such duties include the duty of obedience to lawful orders of the employer, the duty to adapt, to co-operate,the exercise reasonable care and skill as well as other duties.

At D. Hadjinestoros & Co LLC we specialize in employment law. Please give us a call to arrange for a consultation.

This article is written for information purposes only and does not constitute legal advice.

0

PUBLICATIONS 

Duties of Employees in Cyprus

The employee owes the following duties to his employer:

  • Duty of obedience of lawful orders of the employer

The employee has the duty to abide to orders of the employer provided that these are legal and do not place the employee in any immediate danger. It should be noted that the failure to obey work rules may be considered a breach of this duty. This remains the case even if the rules are not contractual and even if they change from time to time.

  • Duty to adapt

The employee has a duty to adapt to new methods introduced by the employer. This duty is not however one-sided. The employer will have to provide the appropriate training for the employeees before he able to introduce the new methods.

  • Duty to account for secret profits made by him in the course of his employment 
  • Duty to co-operate 

 

  • Duty to exercise reasonable care, skill and competence

This duty will usually arise in the context of vicarious liability. i.e. if the employee in the course of employment acts negligently causing damage to someone else thus making the employer vicariously liable, then the employer will have a course of action against the employee to be compensated by the employee for the damages suffered as a result of the breach of the duty.

  • Duty not to compete with the employer whilst in employment.

The employee has a duty not to compete with the employer whilst in employment. This includes cases were the employee is preparatorily coming into contact with (or even making a list of) clients of the employer prior to setting up his own business.

Unless there is an express term in the contract of employment, this duty does not extend to cases where the employee is no longer employed by the employer.

 

  • Duty to account to his employer for all property entrusted to him by his employer and for all the money or property received by him for or on account of his employer
  • Duty to perform his duties in person and not allowed to delegate the performance of his duties unless with the express or implied consent of the employer

At D. Hadjinestoros & Co LLC we specialize in employment law and can give you a consultation on the matters that matter to you. Please give us a call in order to arrange a consultation from a specialized lawyer.

This article is written for information purposes only and does not constitute legal advice.

0

PUBLICATIONS 

Rights of Employees (Unfair Dismissal) in Cyprus

For a person to be regarded as an employee the question which needs to be answered is whether the contract is a contract of service or a contract for services. If the person who has been hired to do a specific task works for his own account then this is regarded as a contract of service and no relationship of employer-employee exists. If the contract is for services, an employer-employee relationship exists.

When a relationship of employer-employee is established, the next factor to look at is whether this contract is for a specific duration or for an unlimited duration. If for example, the duration is for a specific number of years or until a specific future event occurs, the contract is for a specific duration. This means that after the contract is completed, the employee has no further rights in terms of dismissal. The same applies for contracts of employment, which even though they are of an unlimited duration, they specify a probationary period. The probationary period must not exceed 2 years and in case the employer decides to dismiss the employee within the probationary period, he can do so at the end of the probationary period.[1]

If the employer breaches the specific duration contract or the probationary period by dismissing the employee earlier than the specified period,[2] he is liable to pay damages to the employee.

If the contract is of unlimited duration, then the termination of employment in Cyprus is governed by the Termination of Employment Law (L. 24/1967). The Termination of Employment Law aims to provide employees with rights when it comes to job security given that usually the employee is in a worse bargaining position than the employer. In this way the Law can be used as a weapon by the employee in cases of unfair dismissal.

When can the employer dismiss the employee:

There are several reasons when the employee can be legally dismissed under the Law. First of all, an employee can be legally dismissed when he has completed the retirement age which currently stands at 65 years. Article 5 of the Law provides several other reasons where the dismissal is not unfair.

[1] This is unless a specific notice period is provided in the Contract

[2] See footnote 1

These include cases where:

  • The employee fails to carry out his work in a reasonably sufficient manner.
  • The dismissal is a redundancy.
  • The dismissal is due to reasons which cannot be controlled by the employer such as war, fire or an “act of God”.
  • Other reasons having to do with the bad character and work ethic of the employee (for example leaving work whenever the employee decides, serious negligence in carrying his duties, committing a criminal offence in the course of employment, etc).

A dismissal is prima facie regarded as unfair and the burden is on the employer to prove otherwise. Dismissals are always unfair when the reason for the dismissal is due to race, religion, political views etc., or if the employee is a member of a trade union or representative of employees, or where the dismissal is because the employee has filed a complaint against the employer, or takes part in a procedure (criminal or civil) against the employer. If an employer dismisses an employee because the employee is appearing as a witness in a court procedure against the employer, that also amounts to a contempt of the court, which is punishable by imprisonment.

An unfair dismissal need not be direct. It can be indirect (or in law a “constructive dismissal”). Constructive dismissals occur when the actions of the employer force the employee to quit his employment.

In case the dismissal is deemed unfair by the court the maximum compensation which can be awarded by the court is 2 years of the employee’s salaries. The minimum which can be awarded is calculated in accordance with the period the employee has worked. Below are some indications.

YEARS OF WORK SALARY IN WEEKS
1 year 2 weeks
4 years  8 weeks
10 yearst 23 weeks
15 years 38 weeks
20 years 55.5 weeks
25 years 75 weeks

Notice Period:

Irrespective of whether the dismissal is fair or unfair, in most cases, when an employer terminates the employment of an employee, he has to give notice to the employee prior to the dismissal. This notice must be paid and the period of the notice is according to the weeks the employee was in employment. The following is an indication of the periods:

YEARS OF WORK NOTICE PERIOD
6 to 12 months 1 week
1-2 years 2 weeks
2-3 years 4 weeks
3-4 years 5 weeks
4-5 years 6 weeks
5-6 years 7 weeks
6 or more years 8 weeks

The notice period must be in writing and it cannot be excluded or the periods reduced by contract. Furthermore, the 8 week period is the minimum which can be as it may have to be extended according to custom or practice.

It is not only the employer who has to give a notice. The employee also has to give a notice in cases that he/she is planning to leave his/her employer. The period which must be given by the employee is according to the weeks the employee was in employment:

YEARS OF WORK NOTICE PERIOD
6 to 12 months 1 week
1-4 years 2 weeks
4 or more years 3 weeks

 

At D. Hadjinestoros & Co LLC we specialize in employment law and can give you a consultation on the matters that matter to you. Please give us a call in order to arrange a consultation from a specialized lawyer.

This article is written for information purposes only and does not constitute legal advice.

0

PUBLICATIONS 

Rights of Employees (Hours of Work, Annual Leave, Salary, Pension) in Cyprus

One of the most important matters for employees, concerns their rights in employment. Every employer must ensure that, through the employment contract, each employee is given the following information:

• Details of the employer and employee.
• The place of employment and the registered address of the employer.
• The position of the employee.
• The date of commencement of employment.
• The period of employment.
• The number of paid leave days which the employee is allowed.
• The period of hours per day or number of days of employment per week of the employee.
• Any collective agreements which govern the employment conditions of the employee.

Employees, whether working full time or part time have the same rights in relation to social insurance contributions, parental leave, sick leave and paid leave.

Salary:

According to the Minimum Salary Order of 2012, the lowest gross monthly salary (from the 1st of April 2012) is €870 and after a continuous 6 month work period with the same employer, this rises to €924.

Hours of Employment:

The period worked by an employee must not exceed a total of 44 hours per week or eight (8) hours per day.
The following are exceptions to the above:

1. Cases of actual or imminent accident, force majeure, urgent work in mechanical and other facilities etc.
2. Cases of necessary labour to prevent damage to goods or any other risk to the technical results of the employer.
3. Special employment cases which include receipt of goods, balance sheet preparation, the settlement of accounts, clearing and balance sheet closure.

4. Cases of abnormal pressure in work due to special circumstances.

Annual Paid Leave:

Under the Hours of Employment Law (Cap 182), it is provided that the minimum annual leave is 20 days for those working a 5-day week and 24 days for those working a 6-day week. A precondition for annual leave is that the employee works for 48 weeks within the year. If the employee did not, the annual leave decreases depending on the weeks he worked. During the period of the annual leave, the employee is paid by the Central Leave Fund. The employer’s contribution to the Central Leave Fund is 8% on the total earnings of the employee.

The employer is allowed to exercise discretion on whether the employee will go on leave but in no case can the employer reduce the period of leave.

The following are not considered as annual leave: public holidays, maternity or parental leave, absence due to accident or illness, absence from work due to a strike or lockout, time given as notice period for termination of employment, leave on grounds of force majeure.

It is important to mention that, by agreement between the employer and employee, the annual leave can be accumulated for a period of 2 years.

Sick Leave:

Sick leave and its payment thereof, are not subject to rules, except in certain specific areas where there are relevant regulations in place or where this is provided in the contract of employment.

The social insurance legislation provides for sick pay from the fourth day of the incapacity of an employee, while in the case of self-employed persons, the sick pay is allowed from then ninth day of incapacity.

To be eligible for sick pay the employee must file a specific form and submit this to any District Social Security Office or Citizen Service Bureau. The application must be accompanied by an original medical certificate and other evidence in the application.

Parental Leave:

Parental Leave is unpaid leave granted to each employee parent (mother or father) for child care purposes. Parental Leave may be given for a period of up to 18 weeks. It is important to note that the legislation provides for special provisions in cases of adoption, children with disabilities or serious and chronic diseases.

Pension:

Employees or self-employed, are allowed to a pension paid by the Social Insurance Fund provided the following conditions are met:

1. The employee must have reached the retirement age of 65 years of age.
2. The employee must have spent 520 weeks in employment from the starting week of the payment of Social Insurance Contributions.

It should be mentioned that when the employee reaches the age of 68 and does not satisfy the insurance conditions for pensions, he is entitled to a lump retirement sum instead of a pension if he has passed 312 weeks in employment from the starting week of the payment of Social Insurance Contributions.

This article only provides an outline of the current status for workers’ rights. In each case the employee must seek legal advice before making any decision with respect to any matter within the working area, so as to guarantee the best possible outcome.

0