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On July 10, 2014 the Constitutional Court of the Republic of Belarus took the Decision «On Legal Regulation of the Amount of Payment for the Period of Enforced Idleness to the Employee Reinstated in his Former Job» (reporting judge ‒ T.V. Voronovich)
The proceedings were initiated by the Constitutional Court in accordance with Article 158 of the Law of the Republic of Belarus «On the Constitutional Proceedings» on the basis of the application of the joint stock company «ZHeldorservis Mogilev».
In its application the joint stock company pointed out the contradictory case-law of the setoff of the compensation for unused leave when determining the amount of payment to the employee of the time of enforced idleness.
In its Decision the Constitutional Court stated the following.
According to the Constitution the Republic of Belarus is a social state (Article 1); employees shall be guaranteed a just share of remuneration for the economic results of their labour in accordance with the quantity, quality and social significance of such work, but it shall not be less than the level which shall ensure an independent and dignified living for them and their families (Article 42.1).
In accordance with Article 244.1 of the Labour Code in case of the reinstatement of the employee in his previous job, as well as the reformulation of the reasons for dismissal which put obstacles for the employee to a new employment, he shall be paid the average wage for the period of enforced idleness.
The labour legislation determines payments that are subject to registration (or not included) while calculation of the average wage for the period of enforced idleness. At the same time the labour legislation when determining the amount of payment for the period of enforced idleness to the employee to be reinstated in his previous work does not contain provisions on the setoff of payments in case of dismissal of an employee, that is, the possibility to reduce the calculated average wage for the period of his enforced idleness for a certain amount.
At the same time the paragraph 51 of the Judgment of the Plenum of the Supreme Court of the Republic of Belarus on March 29, 2001 № 2 «On Some Issues of Application of the Labour Legislation by the Courts» (hereinafter - the Judgment of the Plenum) establishes that in case of payment to the employee of the average wage in favor of the employee severance pay and compensation related to the dismissal, wages for the period of work for another employer after the illegal dismissal, temporary disability allowance paid to the applicant within the period of the period of paid enforced idleness shall be set off.
The Constitutional Court made the conclusion that these provisions of the Judgment of the Plenum do not clarify the issue on the application of labour legislation, but contain a new legal provision that determines payments to be set off while determination of the amount of payment for the period of enforced idleness by the court, while public relations in the field of labour and related relations should be regulated on the basis of labour legislation.
Thus, the absence in the legislation on labour of provisions regulating the determination of the amount of the payment of the period of enforced idleness for the employee reinstated in his previous work concerning the offset of the severance pay and (or) other payments received in case of his dismissal, brought to legal uncertainty in the law enforcement.
In order to ensure the constitutional principle of the rule of law and to eliminate legal uncertainty the Constitutional Court recognised it necessary to make alterations to the Labour Code of the Republic of Belarus concerning the regulation of the issue on set-off of payments received by the employee in case of dismissal when determining the amount of payment for the period of enforced idleness. The Council of Ministers of the Republic of Belarus is proposed to prepare a draft law on making appropriate alterations to the Labour Code of the Republic of Belarus and introduce it to the House of Representatives of the National Assembly of the Republic of Belarus according to the established procedure.