Labor Law for Businesses

16.08.2021

Author: Simon Takashvili

Immediately upon understanding of labor law, the first thing that comes to mind is the rights of the employee and their protection. This is so in everyday relations as well as at the legislative level, which is well seen by the labor legislation of Georgia, by which the rights and interests of the employer are to a certain extent neglected.

At one glance, or even two, it is very good when the rights of the employee are protected and we all agree on this, however, it is also clear that in many cases, to the guarantee of the employee's rights and protection in the dose that the active legislation offers us, the absolutely legal and good-faith interests of the employer are sacrificed. Proceeding from my practice, I have had the case more than once when the employer, especially if it is a large company which has several hundred or even several thousand people employed, how unequally they have been “oppressed” by that strictest approach which the courts offer us today.

I did not mention the word “oppression” by accident. Some may think what business this word has with such large companies that have so many employees and, accordingly, great financial possibilities; however, exactly with such an approach and such thoughts (I have more than once heard such loudly revealed thoughts from judges), the rights of the employer, even of such a large company, are violated by the legislative levers existing in the hands of the employees and, on the other hand, by the strictest approaches of the court.

Also, I have had the case more than once when unconscionable or “semi-conscionable” employees (or former employees) how badly they use the strict court practice and, in many cases, the vague norms of the law, and how they try to purposefully cause damage to employers or former employers. I have seen such cases as well, when former employees have entered lawsuits in court demanding restoration to work and so on, however, parallel to this, they are working elsewhere as well and in the process of the court dispute, they are receiving a salary in parallel. Afterward, by the trends established by court practice, they win the court dispute as well and are given compensations which, in many cases, exceed reasonable limits.

The court’s approach is yet another separate theme. Proceeding from my personal experience, I can say that I have had such cases when the court has established such a high standard for the company during the evaluation of the lawfulness of its employee's dismissal that, factually, the company would not be able to manage the overcoming of the mentioned standard. Frequent are such cases as well when, as in that famous saying, the court appears before us as more Catholic than the Pope and tries to surprise us with brand-new “discoveries.” This might be good, for example, toward such developed countries and accordingly businesses that have the ability and possibility to offer such high standards of protection to their population or employees; however, with us, that this is not entirely correct, we all see this together while looking at the made-more-expensive life. Yes, when you obligate a business to have such a high standard, it has to direct additional financial resources to raise this standard, and this financial resource, in the final result, it takes back from us again in the form of a made-more-expensive product.

Right here, we must mention the most painful topic from the health and economic viewpoint (in the direct sense of this), the pandemic. Specifically, during the period of the pandemic, to many large business subjects, the right of activity was simply stopped and/or that activity which this subject was carrying out simply no longer existed. For example, in the sphere of international shipments, when the borders were locked, every carrier company, which had tens and hundreds of employees, was forced to either send employees on so-called unpaid leave (which is not correct) or dismiss the employees or suspend the labor relationship with them. The most interesting proved to be this last version: the suspension of the labor relationship. It is interesting in that viewpoint that the Labor Code, for some reason, does not know the pandemic or even such a case when the work to be performed simply no longer exists.

Accordingly, the companies that decided not to dismiss their employees, but rather to temporarily suspend the labor relationship with them, found themselves in a dead end and, moreover, by a decision of the court of first instance a few days ago, the decision of the company about such a suspension was recognized as void and the company was tasked with the reimbursement of the money to be given to the employee during the period of suspension. That is, to the employee who did not perform work, the court assigned the monthly salary which they would have received had they worked. Clearly, such a court precedent is, to say it most softly, illogical. The company suspended the relationship with the person because the work to be performed did not exist, and how can the company reimburse the employee the salary (the so-called amount of forced idleness, or in everyday language, "back pay") because of non-existent work? To this question, the court often has a very interesting answer, which in the recent period came into fashion especially in the practice of the courts of upper instances (predominantly the Supreme Court). Specifically, the court points out that it is not obligated to deliberate in detail and extensively on all arguments of any party (for example, the defendant company). About this “standard” established by the court, it should be written separately, because talking about this here will take us far, and the goal of this small letter is not this.

In this way, against the background of such large levers and rights existing in the hands of the employees, it is quite difficult to protect the rights of employer companies or other persons; however, of course, this is not impossible. Our company helps employer companies in the settlement of similar issues and tries to show the court not only the necessity of protecting the employee's rights but also that the employer's rights should not be so violated that the meaning of producing business in various sectors is lost entirely. Finally, we express hope that it will be good if court practice changes step-by-step and will equally protect the subjects of labor law relationships.