Vladimir Logatšev, lead counselling lawyer at the Labour Inspectorate responds:
The employer is obliged to provide the employee with the work agreed upon and give clear and timely instructions. The employee, in turn, is obliged to perform the work in the agreed volume and at the agreed place and time.
The employer must pay average wages to an employee who is capable of working and ready to do work even if the employee does not work because the employer has not provided them with work, has not made preparations required for doing work or has delayed the acceptance of work. Exceptions are situations where the failure to provide work is due to the fault of the employee.
Therefore, the employer is obliged to pay average wages to the employee if:
the employee is capable of working;
the employee is ready to work;
the employer has not provided work, has not performed an act required for doing work or has otherwise delayed the acceptance of work.
The law does not require an employee to make up for days when the employer had no work to provide.
Where the employer fails to provide the employee with the work agreed upon or otherwise hinders the employee’s performance of work with their actions and fails to pay the average wages, the employer is in breach of their obligations. In such a case, the extraordinary cancellation of an employment contract by the employee may be considered.
When the employee is not provided with work, it should be borne in mind that it is not automatically a violation on the part of the employer, for example, in a situation where the employer pays the employee the average wages for that period. It is a breach of the employer’s obligation if the employer does not pay average wages for the period they have no work to provide. Whether or not the employer fulfils its obligation to pay average wages to the employee for the period during which they did not provide the employee with work becomes clear when the average wages fall due, ie on the pay day.
The employer has the right to refuse to pay wages if they can prove that they had work to provide to the employee but the employee did not turn up. Therefore, it is good in these situations if the employee has requested work from the employer and expressed their readiness to work in writing. It is also important that the situation where no work is provided is recorded, for example, in an internal document or in the employee’s relevant correspondence with the employer. These written documents are necessary in the event of possible subsequent labour dispute to confirm the work stoppage.
