Judgment of the Court of Justice of the European Union of 2015-02-12 Case C-396/13

The Court of Justice of the European Union was requested to rule on the interpretation of Article 3.1 and 3.7, of Directive 96/71, of 16 December 1996, concerning the posting of employees in the framework of the provision of services, the request having been made concerning pay claims arising out of employment relationships by Polish workers posted in Finland.

According to that Directive, minimum rates of pay are defined by the national legislation of the host State of the posted employee, the constituent elements of those rates of pay being defined in that State, in so far as this does not have the effect of impeding the freedom to provide services between Member States.

Thus, collective agreements in these Member States that calculate the minimum wage for hourly work and/or for piecework based on the categorisation of employees into pay groups do not infringe the Community principle of freedom to provide services, provided that that calculation and categorisation are carried out in accordance with rules that are binding and transparent.

The Court of Justice considers as part of the minimum wage of posted employees: daily allowances; compensation for daily travelling time, on condition that their daily journey to and from their place of work is of more than one hour’s duration; and the pay which the posted employees must receive for the minimum paid annual holidays, corresponding to the minimum wage to which those workers are entitled during the reference period.

However, coverage of the cost of posted employees’ accommodation, as well as an allowance taking the form of meal vouchers are not to be regarded as an element of their minimum wage.

Judgment of the Court of Appeal of Guimarães of 2015-01-15

The Court of Appeal of Guimarães was called to pronounce on the dismissal of an employee whose culpable conduct made it immediately and effectively impossible to continue the working relationship.

For the court, the fact that the director of services at a home for the elderly, in the presence of third parties, had criticised, in a mocking tone, the employer’s decision to set up fencing panels of a significant height, notwithstanding the breach of the duty to respect and be courteous with employers, hierarchical superiors, work companions and other people who are or may enter into a relationship with the company, this does not make it impossible to maintain a working relationship.

In turn, the court also regarded the fact that the employee in question addressed a member of the board, in this case the Treasurer, in a recriminatory tone of voice, having thus also breached the duties referred to above, merely represents a disciplinary infringement and not therefore sufficient grounds for dismissal with just cause.

Finally, and also in the atmosphere of hostilities between the employee and the employer, the fact that, while visiting one of the users of the centre, who was her aunt, she sang the song “Grândola Vila Morena” as it was her birthday, is not sufficiently reprehensible to justify the dismissal since the employee was not working at that time and was there on a private matter.

Judgment of the Court of Appeal of Guimarães of 2015-02-12

The Court of Appeal of Guimarães was called to pronounce on the lawfulness of the dismissal of a bank employee who had made a transfer from the account of a customer to the account of a third party and, following this, applied the money in capitalisation products without the knowledge and consent of the customer.

For the court, this situation amounts to just cause for dismissal, given that it constituted infringement of a fundamental rule that exists in the banking system and which aims to guarantee the transparency of all operations carried out by the bank and, at the same time, raise the confidence of its customers: the money which it holds as depositary can only be used for a purpose other than that initially proposed with the customer’s consent.

Given that the employee knew that the bank did not authorise him to make a transfer from a customer’s account to the account of a third party or to acquire financial instruments without the customer’s consent, his attitude could not fail to be considered culpable and, as it had serious consequences, made it immediately and effectively impossible to continue the working relationship.