During the summer period, when several employees go on vacation at the same time, it often happens that employees have to replace even two or more colleagues during their absence. Can an employee replace several colleagues at the same time?
Based on the provisions of the Labor Law (LL), an employee can use several types of vacations:
- annual paid leave;
- additional leave;
- maternity leave;
- leave for the child's father, adoptive parents or another person;
- parental leave;
- study leave;
- leave without pay.
It can be concluded that in practice, a situation is often possible when, according to the agreed vacation schedule, an employee goes on vacation and during his absence, it is necessary to replace the employee with another employee, who takes over the performance of work duties until the return of the relevant employee. At the same time, another employee may be granted leave, for example, in connection with the birth of a child. A situation may arise when one employee has to replace not only one, but even two colleagues who are absent.
Conditions in the employment contract
Article 28, Part 1 of the LL stipulates that the employer and the employee shall establish mutual employment legal relations with an employment contract. Section 28, Part 2 of the LL stipulates that with the employment contract, the employee undertakes to perform certain work, obeying a certain work schedule and the employer's orders, while the employer - to pay the agreed wages and to ensure fair, safe and healthy working conditions.
Before entering into employment legal relations, the parties have the right to decide whether each of them wants to conclude the specific employment contract or not. Freedom of contract means that parties can form contractual relations and determine the content of the contract on the basis of mutual understanding and free choice. So - before concluding the contract, the parties have realized what the work duties and remuneration for the work will be.
It is important that the employee's duties are described clearly and in detail in the employment contract or in the employee's job description, because assigning other tasks not provided for in the employment contract is usually recognized as an amendment to the employment contract, which requires the employee's consent. On the other hand, if the job duties are indicated in very general terms, the employer has greater freedom of action, clarifying the duties to be performed by the employee and assigning him additional work by his order (Article 56, Part 1 of the Labor Code).
LL Article 40, Part 2, Clause 5 defines the minimum information to be included in the employment contract, for example, a general description of the contracted work. It is a common practice to add a job description in an appendix to the employment contract, which describes the job duties to be performed in more detail. It is an integral part of the employment contract, therefore the following text is included in the employment contract with reference to the job description - "the employee undertakes to perform the duties of the position, in accordance with the job description, which is an appendix to this contract".
When evaluating the characteristics of the hired job, it is important to understand how detailed the job description is prepared. If the job description is general and widely interpreted, it opens the possibility for the employer to order another employee to be replaced in such cases. However, it should be taken into account that the replacement cannot prevent the employee, who has to replace someone else, from performing his own direct work duties, thereby worsening the employee's legal position.
In practice, such concepts as "combining jobs (positions)" and "combining jobs (positions)" are encountered. The first explains the situation in which two or more different jobs (positions) are performed at the same time, while the second describes the simultaneous performance of similar or the same jobs (positions).
For example, if the office administrator additionally undertakes to perform tasks not related to the respective position, which are not mentioned in the job description, it is a combination of two jobs. On the other hand, if one of the three accountants of a capital company goes on vacation and, in the opinion of the employer, the other two are able to complete the work of three accountants (also related to the fulfillment of the accountant's work tasks), this is a combination of jobs (positions).
Financial side
In a situation where an employee performs a replacement as additional work within normal working hours, he is entitled to a bonus based on Article 65, Part 1 of the Labor Code. The employer and the employee must agree on the performance of additional work, as well as the amount of the bonus. The employer is not entitled to single-handedly determine either that the employee must perform additional work, or the amount of the bonus for performing such additional work.
It is important to observe and understand the words "accompanying" and "corresponding" to LL for a premium. This means that the additional work must be done within the time frame of one working day (no more than 40 hours per working week). If the employee performs this additional work outside normal working hours, it is overtime work, the duration of which is limited by LL and the procedure for its application is determined by law. LL does not regulate either the minimum or the maximum amount of the allowance.
In practice, there are also situations in which when concluding an employment contract, both parties agree that additional work will be done to replace a colleague during his vacation, while when the employee goes on vacation, another employee will have to replace him. Surprisingly, employees usually take this for granted, not realizing that it is an infringement of their legally protected rights.
Workload
When answering the main question of the article, it is also necessary to take into account the working hours set and allowed by LL - without separate agreement, the working hours must not exceed the set limits (40 hours a week). If a situation has arisen in which the employer needs an employee to perform additional work that exceeds the limits of normal working hours and is related to, for example, another employee being on vacation, such additional work must comply with the provisions of Article 136 of the LL.
Article 136, Part 1 of the Labor Code stipulates that overtime work is work performed by an employee above normal working hours. On the other hand, Article 136, Part 2 of the LL stipulates that overtime work is permissible if the employee and the employer have agreed on it in writing.
In the legal literature, it is stated that the agreement on the performance of overtime work should not be included in the employment contract. Such an agreement must be concluded every time the employee and the employer agree on overtime work. In situations where the employee works overtime without a written agreement, he must take the risk that in the event of a dispute, he will have to prove that there was an agreement on working overtime with the employer and that the overtime was worked in a certain amount. Respectively, it is necessary to be able to indicate exactly what work duties the employee has performed over normal working hours and which the employer has accepted, and what evidence proves this. At the same time, if, in accordance with Article 136, Part 2 of the Labor Code, there is no written agreement between the employer and the employee, but the employee works overtime and the employer has accepted it, the employer is obliged to pay for the overtime worked. Article 41, Part 2 of the LL shall be applied to this agreement by analogy, which stipulates that an employment contract that does not conform to the written form has the same consequences as a written employment contract.
If an employee performs additional work beyond normal working hours, the employer is obliged to pay an overtime bonus. An employee who performs overtime work or work on a public holiday receives a bonus in the amount of not less than 100% of the hourly or daily wage rate set for him, but in the case of a piece-rate wage, not less than 100% of the price of piece-work for the amount of work performed ( LL Article 68, Part 1). The employment contract can also stipulate a higher bonus for overtime work.
It can be concluded that each case of such replacement needs to be analyzed separately, in the context of the provisions stipulated in the employment contract. It is also necessary to take into account Article 56, Part 3 of the LL, which stipulates that the employer does not have the right to demand that the employee perform work not provided for in the employment contract, except in the cases specified in Article 57 of the LL, namely the consequences caused by force majeure, an accidental event or other extraordinary circumstances in prevention situations. In addition, the employer must take into account that it must refrain from actions that may worsen the legal position of the employee.