78/2008 Official Gazette of the DOD (517938)
(1ST LAW PUBLICATION)
Labor law. Unilateral deleterious change. Musicians – singers. THE
their employment contract is fixed term. Substantial complaint from a musician
of the employment contract which is of a certain duration due to employment on
eleven days, for the important reason of reducing his wages and right
receiving wages until the end of the contract. Affidavits. Reasonable
delay interval of 15 minutes. They are not considered if not mentioned
the time of receipt of the affidavit.
Decision Number: 78/2008
DODEKANIS COURT OF APPEALS
Composed by Judges, Evripides Lagoudianakis, President of Appellants,
Emmanuel Vasilaki, Konstantina Yiannopoulou [Reporter], Appellants and the
Secretary Ekaterini Diakokoliou.
He met publicly in his audience in Rhodes on 18.1.2008, to judge
the following case between:
Of the Appellant: G. S., a resident of Rhodes, who represented himself
attorney of attorney of Ioannis Karamihalis.
Of the Appellant: I. Syz. A. R., resident of Rhodes, who appeared after him
attorney of attorney of Emmanuel Koutsoukou.
The plaintiff (appellant) filed an action at the Single-Member Court of First Instance of Rhodes from 24.5.2005
and with no. exp. 151/26.4.2005 his action against the defendant
(respondent). That Court with its 159/2006 final decision,
dismissed the action, opposition of the parties. Against this finality
decision, the plaintiff applied to the court that issued it, addressing the
present on the lawsuit from 18.1.2007 and with no. exp. 67/13.2.2007, copy
of which was filed in the secretariat of the present under no. exp. cat.
67/15.2.2007. for the discussion of the one that was legally written in its turn
in the relevant table, the one referred to at the beginning of it was determined to be litigable
present.
During the hearing in which the case was legally heard
in turn from the relevant board, their attorneys
parties, developed their claims orally and referred to
written proposals submitted by them.
STUDY THE LITERATURE
CONSIDERED ACCORDING TO THE LAW
The present appeal against his final decision No. 159/2006
Single-member Court of First Instance of Rhodes, which was issued against the parties on
special procedure for labor disputes (art. 663 et seq. of the Labor Code), has been exercised
legal forms and on time according to the submitted documents, given that
filed with the Registry of the Court of First Instance, prior to service
of the appealed decision art. 499 and 518 § 2 of the Civil Code. Therefore you must
be formally accepted and further investigated for admissibility and validity
of its reasons (art. 533 § 1 of the Civil Code), according to the same special procedure as above.
With the before the Court of First Instance from 24.5.2005 and under no.
cat. 151/26.5.2005 action by the plaintiff, as it is admissible with the
first instance trial his proposals were limited (art. 223 § 1 of the Civil Code) he stated that,
was hired on 12.2.2004 with a fixed-term temporary employment contract
by the defendant, who maintained the referred to her (lawsuit).
nightclub in Rhodes where he worked as a musician on the organ
synthesizer in the winter season until 30.4.2004, from its system
five-day weekly work from Wednesday to Sunday with hours from
24:30 to 04:00 with a net daily wage of 80 euros. That with a new dependent contract
fixed-term employment was hired by the defendant on 1.5.2004 to
to work in the summer period until 30.9.2004 in the same capacity as above
musician with a net daily wage of 80 euros, under the five-day system
weekly work from 1.5 to 30.6.2004 and under the seven-day system
weekly work from 1.7 to 30.9.2004. That he worked against her
(lawsuit) mentioned, but on 3.6.2004 the defendant reduced his salary
in the amount of 60 euros for the remaining period of his work,
however, this unilateral harmful change in the terms of the employment contract does not
accepted it and terminated the employment contract between them, according to
specifically referring to this (lawsuit). After that, he asked to be obliged
defendant to pay him the total amount of 14,397.01 euros for compensation
included in the lost wages from 15.5.2004 until its expiry
employment contract, Easter, Christmas gift ratio, wages and
leave allowance, with legal interest from service of suit. On the lawsuit
of which the appealed decision was issued, which rejected it as unfounded
treatment. The plaintiff is already complaining against this decision with the legal appeal,
requesting for the reasons contained therein its disappearance, with
in order to have his lawsuit accepted as a valid substance.
According to article 652 of the Civil Code, the employer has the managerial right to regulate
everything related to the organization and operation of his business
in order to achieve its general purposes, limited only by
the terms of the contract, as interpreted in good faith and the
business ethics and by law. Therefore, any modification of a term of the contract
work on behalf of the employer, which is not permitted to him by
contract or by law, constitutes a harmful change to the terms of the contract e
weight of the worker. However, this change does not automatically bring about the solution
of the contract, nor obliges the employee to accept it or leave
from his service, but if the contract is for an indefinite period, his
provides the right to consider the change, according to article 7 of Law 2112/1920
as termination of the contract on behalf of the employer and to request it
statutory compensation, if the contract is for a fixed term,
as are the employment contracts of musicians-singers in centers
of entertainment, according to article 7 of 9.6.1997 S.S.E. “for the terms
remuneration and work of the musicians-singers of entertainment centers", which
was declared mandatory from 6.10.1997 with the Y.A. 13498/27.10.1997 which
was published in Official Gazette 993B/7.11.1997, so Law 2112/1920 does not apply
and in particular article 7 thereof, but he is granted the right to
denounce according to article 672 of the Civil Code for good reason, which is also recommended by
violation of the terms of the contract and to request according to article 673 of the Civil Code. By
breaching the terms of the employer contract the payment of compensation which
it consists of the wages from the time of termination until its termination
contract period (see AP 907/2004, AP 94/1995 Hellenic Law 38.587). From
the combination of the last above-mentioned provisions 672 and 673 of the Civil Code results with
clarity that: a) the important reason that allows the termination of the contract
of a certain time does not presuppose necessary culpability (fault) on the part of the person
of the one against whom the complaint is made, 2) such great reason
it is mainly the breach of contractual obligations, but also others
incidents which, according to an objective judgment, constitute in the specific case
unacceptable for the employer or the employee the further continuation of the contract
and 3) for the assessment of whether such incidents occur, the
good faith and business ethics, but also the particular circumstances that
accompany such incidents in this particular case (see OlAP 10/1995
EErgD 55.374, Greek Law 36.595).
In the present case, from the testimony of the witnesses of the parties (one
on each side) which were examined under oath at the trial, which
are contained in the minutes of the meeting together with the appealed decision
of the Court of First Instance, assessed according to the degree of knowledge and measure
credibility of each witness, the affidavits of his witnesses
plaintiff F. B. and H. C. contained in No. 2451 and
2452/6.2.2006 affidavits of the notary Rodos Th. X., which
taken during the trial, are not taken into account by the Court
this is not even for the inference of judicial evidence, since these were received
without the representation of his opponent, who had been duly summoned
his summons from 3.2.2006 to appear during the examination of his witnesses
before the above notary of Rhodes on 6.2.2006 at 1:00 p.m
as appears from the performance report No. 1890C/3.2.2006 of
bailiff of the Court of First Instance of Rhodes M. K., but in the aforementioned
two affidavits which were taken on 6.2.2006, are not mentioned
not at all at what time on 6.2.2006 were they received, so that it can be judged by the
Court if the above two witnesses attended the above
notary public at 1:00 p.m. as stated in the document served on the opposing party
defendant as above summons or if for reasons concerning themselves they came with
delay beyond a reasonable time up to 15' from the set start time
13:00, so ex officio they are not taken into account by the Court,
regardless of whether damage has occurred to the non-appearing counterparty (see
OlAP 20/2004 E.E.N. 2004.796, Law No. 53.65) of all without exception the rest
documents cited and legally presented on both sides (see AP 363/2001
Greek Decree 43.198, Greek Decree 320/1999 Greek Decree 40.1310, Greek Decree 1021/1998 Greek Decree 39.1535)
the claims of the disputing parties contained in the written proposals
them, the following facts were fully proven: The plaintiff the
12.2.2004 he was hired by the defendant under a dependent labor contract
for some time, as a musician on the synthesizer instrument in the nightclub
entertainment with the distinctive title ".." which the latter maintains in the settlement
of Cretans of the Rhodes-Ialyssos provincial road for the winter season up to
30.4.2004, where he offered his services with a net daily salary of 80 euros under
the five-day work system from Wednesday to Sunday with hours
24:30 to 04:00. After the termination of this contract, the plaintiff continued to
works in the aforementioned entertainment center of the defendant with the aforementioned
his capacity with a net daily salary of 80 euros under the same five-day system
working hours from Wednesday to Sunday with the same hours 24:30 to 04:00, until
on 15.5.2004, which the defendant temporarily suspended from 16.5.2004
of her store in order to renovate its space for the summer
period. After the end of the renovation on 3.6.2004 which began
reopening of the store in question, the plaintiff returned to work, however
the defendant reduced his remuneration to the amount of 60 euros as net
daily wage, while initially, as mentioned above, the amount of 80 was agreed upon
euros as a net daily wage, but the claimant refused to offer the services
with the reduced daily wage of 60 euros. The latter appealed on 7.6.2004
to the Dodecanese Labor Inspectorate, where the defendant was also invited for
on 9.6.2004 at 12:00, when the plaintiff and the defendant appeared
through the legal representative of her son G. R., and after an adjournment for the
18.6.2004 they appeared again as above at the Labor Inspection, where
while the defendant accepted that the plaintiff return to work with a daily wage of 80
euros, then the last one with the 21.6.2004 out-of-court statement
of, which he communicated to the plaintiff on 24.6.2004, as appears from the
No. 11259B/24.6.2004 service report of the bailiff of
Court of First Instance of Rhodes MK, invited the plaintiff to work in her business
with a daily wage of 70 euros, despite the fact that the Labor Inspectorate either accepted to
the plaintiff works with a daily wage of 80 euros. The last after this extrajudicial,
with his extrajudicial statement of 28.6.2004 which was communicated to the defendant
on 6.7.2004, as appears from the relevant notation of the judge
bailiff of the Court of First Instance of Rhodes M. K., on the notification thereof
extrajudicial document, stated that if within three (3) working days from
sharing his extrajudicial statement does not invite him to work with it
agreed daily wage of 80 euros, terminates the employment contract between them,
for the aforementioned non-contractual behavior of the defendant. This complaint
of the plaintiff, which took place on 10.7.2004, a Saturday, was, according to
objective judgment taking into account good faith and transactions
of ethics according to article 672 of the Civil Code for the important reason of the violation of its condition
contract, as far as the above non-contractual reduction on the part of the defendant
of the plaintiff's earnings, was exercised in apparent excess of its limits
of its managerial right and constitutes unilateral employer damage
change of the terms of the employment contract, which made it intolerable for the party
of the plaintiff, the continuation of the employment contract, with this non-contractual one
reduction of his earnings. The plaintiff since during the summer period of 2004, which
started from 1 May to 30 September, worked from 1.5 to 15.5.2004, i.e.
actually worked eleven (11) days, it is considered valid
employment contract for the entire summer period from 1.5.2004 to 30.9.2004, as
as long as he actually worked at least six (6) days, according to article 9
of 9.6.1997 S.S.E. "for the remuneration and working conditions of the musicians-
entertainment center singers" which was declared mandatory from 6.10.1997 with
Y.A. 13498/27.10.1997 which was published in the Official Gazette 993B/7.11.1997, with
which is defined as, the hiring of hired musicians by any employer
it is considered to have been made for the entire musical period that follows, if o
employee actually worked at least 6 days. With Article 7 thereof
as above from 9.6.1997 S.S.E. it is stipulated that, the employment contracts of the musicians,
including the performers of musical instruments as in this case
in the case of the plaintiff, they are drawn up for musical periods and are fixed
of time. There are two musical seasons per year. The winter season that begins on
1 October and expire at the end of April of the following year and the summer season
starts from May 1st and ends at the end of September of the same year, while
possible renewal or extension of the contract does not change its nature
contract of the lessees which is of a certain time. The defendant's claim
that two employment contracts were drawn up between her and the plaintiff,
duration, the first from 12.2.2004 to 15.5.2004 and the second on
3.6.2004 with a daily wage of 60 euros, which was not a continuation of
previous in which this second contract the plaintiff worked on
dates 3 and 4.6.2004 and left on his own, and since he did not work
actually at least six (6) days provided for by the relevant S.S.E., no
may apply to him (plaintiff) the S.S.E., is deemed inadmissible
unfounded as a matter of fact, since according to the aforementioned the plaintiff worked
actually 11 days wages during the summer period of 2004, which started from
1.5 to 30.9.2004, since and according to the claim of the defendant, the
plaintiff from 1.5 to 15.5.2004, which she (defendant) temporarily interrupted
operation of her store to renovate it for the summer season.
In view of all the above, the plaintiff after the above according to art. 672 AK
termination of their fixed-term employment contract for
for the above-mentioned important reason, he is entitled to compensation according to Article 673 of the Civil Code,
consisting of the loss suffered by the loss of wages which shall
received with probability and in the ordinary course of things if not
the aforementioned complaint took place, during the time period from
termination and until the end of the contract, i.e. from 10.7.2004 to 30.9.2004,
as well as Easter, Christmas gift ratio, earnings and holiday allowance
from his employment on 12.5.2004 until 15.5.2004 that he had not paid
the defendant at the time she temporarily closed her shop and from her
notice of termination 10.7.2004 until the end of the contract 30.9.2004. Specifically
is entitled to the following amounts: a) 4,720 euros for salary during the period
from 10.7.2004 to 30.9.2004 under the five-day work week system,
since his claim that during the period from
10.7.2004 to 30.9.2004 would work under the seven day week system
of work, i.e. 59 days' wages (i.e. July 16 - August 21 and
September 22 at 80 euros per day equal to 4,720 euros), B) 944 euros
for the vacation pay ratio of 11.8 daily wages times 80 euros per day,
(2 daily wages for each month of work, for the period of time worked
from 12.2.2004 to 15.5.2004 and the period from the termination
10.7.2004 and until the end of the contract 30.9.2004 in view of the fact that
for work of less than a year, multiplied by 80 euros per day equals 944 euros), c)
944 euros for the leave allowance ratio of 11.8 days' wages (2 days' wages
for each month of work) multiplied by 80 euros per day equals 944 euros, d) 822.91
euros for the Easter gift ratio for the period from 12.2.2004
until 30.4.2004 and namely one (1) day's salary for every eight (8) calendar days
days of duration of the employment relationship, i.e. (79 calendar days divided by 8
equal to 9.87 daily wages times 80 euros per day equal to 790 euros times 0.04166
if 32.91 euros -790 euros plus 32.91 euros equals 822.91 euros-) and e) 858.32
euros for the Christmas gift ratio for the period from 1.5
until 15.5.2004 and from 10.7.2004 to 30.9.2004, 2 daily wages for every 19
calendar days of the duration of the employment relationship, i.e. (98 calendar days
days divided by 19 equals 5.15 times 2 equals 10.30 daily wages times 80 daily wages
equals 824 euros times 0.04166 equals 34.32 – 824 euros plus 34.32 euros equals 858.32
euro). Therefore, the plaintiff is entitled to receive the sum of 8,289.23 in total
euros i.e. (4,720 plus 944 plus 944 plus 822.91 plus 858.32 equals 8,289.23 euros),
with the legal interest on the legal claim from the next day of its service
lawsuit. As a result of all the above, the appealed decision which rejected
as the action was fundamentally unfounded, he erred in the evaluation of the evidence
on the merits of the plaintiff's appeal on this ground. Therefore it must
if his appeal is accepted as substantively valid, to disappear according to art. §535
1 KPolD. the appealed decision in all its provisions. Then after
the case is established and tried by this Court, in view of
of alleged facts proved, must be partly accepted
as a substance the action is valid and the defendant must be obliged to pay to
plaintiff the above amount, the defendant being sentenced in part at the same time
of the plaintiff's legal costs of both degrees of jurisdiction, by reason of
partly of victory and defeat of the art. 178, 183 and 191 § 2 of the Civil Code, such as
specified in particular in the ordinance.
For those reasons
• Judges objections of the parties.
• Formally and substantively accepts the appeal.
• Eliminates the final decision under appeal No. 159/2006
Single-member Court of First Instance with regard to all its provisions.
• Holds the case.
• He is judging the lawsuit from 24.5.2005.
• She partially accepts.
• He orders the defendant to pay the plaintiff the sum of eight
thousand two hundred and eighty-nine euros and twenty-three cents (8,289.23) with
the legal interest from the next day of service of the action.
• Orders the defendant to pay part of the plaintiff's legal costs
of both degrees of jurisdiction, the amount of which he defines in the amount of
eight hundred (800) euros.
• It was judged, decided in Rhodes on 8.4.2008 in a secret conference and
was published in his audience in Rhodes on 9.4.2008 in extraordinary public
meeting, in the absence of the parties and their attorneys, with
secretary present.
The President The Secretary
P.B.
Source: Law Legal Information Network (www.lawdb.intrasoftnet.com)
