Supreme Court of Lithuania crucified a medical woman, who in Sweden slaved for labour slums
Published
in newspaper the Laisvas Laikrastis
At the Social Summit for Fair Jobs and Growth, taking place on 17
November 2017, in Gothenburg Lithuania‘s President Ms.Dalia Grybauskaite was
not able to answer to a question of Swedish journalist: „Why Lithuanians in
Sweden must work harder but make money less than Swedish people?“
More than ten years a subsidary of Norvegian company in Lithuania, EU, hires cheap labour from Eastern European
countries and provides nursing services in Swedish hospitals. The company pays
only the minimum wages and sends medical women having the sole aim of offering
lower labour costs than those of local workers, ie the conduct, that offends
against the rules of fair competition in Sweden.
In 2015 the subsidary of Norvegian company concluded employment contract with a medical
woman in Vilnius, Lithuania. As it stated in the employment contract, she was
promised to receive the salary, quarranteed in Sweden. Also the parties agreed
that all the emploee‘s benefits, indicated under Swedish legal requirements regarding
payment of quarranteed salary, are secured. The company sent the Lithuanian lady
to carry out nursing work at the following hospitals: Skånes
universitetssjukhus in Malmö, Mora lasarett, Falun lasarett, in the
municipalities of Skåne and Dalarna in Sweden.
In 2016 the Lithuanian medical woman terminated employment contract.
The lady considered that the Norvegian company did not pay her a salary - the
total amount of the claim EUR 17 000. She brought an action
before the District Court of Klaipeda City in Lithuania, the case No.
2-5770-911/2016. On July 21, 2016, the District Court gave a decision - the court refused to satisfy the requirements
of the nurse. Lithuanian lady appealed to a higher court - the Court of
Klaipeda County against the Norvegian company. Again she had
no success in the process of litigation. To resolve the industrial dispute
between parties, in 2017 the medical woman (demandant, claimant,
petitioner) brought an action before the Supreme Court of Lithuania. The case
number is 3K-3-306-248/2017. The Supreme Court examined the case brought by the
medical petitioner to Norvegians and issued a verdict rejecting her claims in
full.
The demandant argues that the Norvegian employer did not justify her
legitimate expectations, since the emplyer did not ensure a normal workload in
Sweden - at least 40 hours per week. The Lithuanian lady suffered losses - her
average monthly salary in Sweden was twice lower than she was paid when she was
employed in a hospital of the city of Vilnius. It is evident that in Sweden the
petitioner suffered losses also due to food prices that are several times
higher than in Vilnius.
The author of the text has carried out an analysis of the court ruling,
so he further expresses his opinion that the Supreme Court violated the rules
for the appraisal of evidence, incorrectly interpreted and applied the rules of
substantive and procedural law and departed from the practice of interpretation
and application of law formulated by the cassation court.
The panel of judges agreed with the cassation
appeal argument that the District Court of Klaipeda City committed a
fundamental breach of procedural law - unreasonably rejected the claimant‘s request to collect data on her
salary rates from the Swedish hospitals in which she worked. Consequently, the
panel of judges found that the rules for assessing evidence had been violated:
the lower courts had made judgments without having obtained sufficient evidence
of wages. This fact clearly prevented the District Court
of Klaipeda
City and the Court of Klaipeda County from giving fair and lawful
rulings.
However having checked the lawfulness and validity of the decisions of
lower courts, the Supreme Court made the same mistake - when making the
conclusion regarding salary level of the claimant, the court again did not collect data on
wage rates from Swedish hospitals, but relied on the same insufficient data on
wages. Thus, we can conclude that the Supreme Court did not check the
legal evidence entirety and impartially. For this reason, the claimant (medical
woman) lost the case - the courts refused to award her the correct amount of salary.
Labour Code of
Lithuania states, that employees posted to a particular Swedish (or any other
country of EU) company (or hospital) are in practice entitled to the same
monetary remuneration as local Swedish
employees working for the same company (or hospital). It means that, for
instance, if a person was sent by Lithuanian company to perform nursing services
at the site of the temporary work user the Falun lasarett, Lithuanian company must pay the same amount
of salary, as if he worked for the Falun
lasarett having concluded direct
employment contract with it. The only problem is to receive salary calculations
based on my real hours worked at a particular Swedish hospital.
The Supreme Court, in the absence of objective data on the actual wages made
a false assumption that the Swedish hospitals - Skånes universitetssjukhus,
Mora lasarett and Falun lasarett - were able to pay the claimant lower than the average salary. The author believes that by doing this the Supreme Court again infringed the rules of the
evidence assessment. To justify this supposition, the court had made two
further assumptions that: (a) not the petitioner‘s international medical license, but that the Swedish language is a
significant factor in the proper performance of the work; (b) the petitioner‘s possession of the Swedish
language level B1 precluded the petitioner
from
receiving the amount of remuneration guaranteed by Directive 2008/104 / EC of
the European Parliament and of the Council on temporary agency work.
Moreover, the court did not assess the fact that
the Swedish hospitals did not complain that the Lithuanian lady was unable to perform his professional activities
properly due to knowledge of Swedish language. On the basis of the above, the
author thinks that the Supreme
Court once
again violated the rules of the evidence assessment - the evidence was not investigated
thoroughly and impartially. The author concludes that the courts have
incorrectly addressed the issue of outstanding pay as a result of failure to
comply with the provisions of Directive 2008/104 / EC.
The Supreme Court, even without referring to
specific norms of Swedish law, relied on another assumption that the subsidiary
of the Norwegian company registered on the territory of Lithuania had paid
taxes from the claimant‘s salary to the Swedish
state budget. However, the employer has not provided evidence that these fees
have been transferred to the bank account of the Swedish State.
It can not be accepted that the
courts deducted 30 percent - the "Swedish" tax - in calculating the
hourly rate of salary. Why did the courts decided to increase the claimant‘s
fees knowing that the employer is registered in Lithuania and paying only 24
percent tax to the Lithuanian state tax inspectorate? The answer could be that by
deducting larger ("Swedish") taxes from the salary may lead to a
reduction of salary so that it would be possible to conclude that the employer
has paid the applicant right amount of salary.
The Supreme Court of Lithuania made even more striking conclusions.
Since the Norwegian company did not provide the claimant with normal workload
at a medical facility, the woman actually worked for only 182 days a year, when
we all know that there are 365 years in a year. The court named the period
of forced unemployment of a medical
woman as "rest days". However, the Supreme Court of Lithuania has
also accused the Lithuanian lady that she did not prove that 3 months‘ period
of forced unemployment is not her rest days. As a real mischievous ridicule,
there is an excerpt from the employment contract cited in the court order that
the parties of the dispute clearly agreed on work based only on demand: „The employee
shall work as many working hours as agreed with the work user.“ This means that
in the event that the employer does not (or does not want to) find job for the medical
woman in Sweden, the lady has to suffer involuntary unemployment for which the
employer is not obliged to pay.
It is not possible to suppose that in the story of
the Lithuanian medical woman the courts demonstrated a humanistic attitude to
the working person and correctly resolved a socially sensitive issue - the labour
dispute in ensuring the adequate protection of the interests of the litigant,
which in the labor relations is assessed as weaker. Unfortunately, the Supreme Court
has done the opposite of everything it needs to be done.
In my opinion, by using sophisticated methods of
smashing people exploited in labour slums,
judicial authorities of Lithuania can help lay the foundations for the modern
slavery system (forced labour exploitation) in the Kingdom of Sweden. Should
one understand that by using the methods mentioned above judiciary demonstrates
true respect for human dignity and does the right service to the community of
health workers fighting for the constitutional right to a fair remuneration?
Zigmantas Šegžda, human rights‘ activist from Vilnius, Lithuania
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