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Old 09.10.2018, 00:13
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employer late - payment due?

An employee has been working for an hourly wage, in four-hour shifts, once or twice per month, for about four years. The working times are agreed with the employer for the next month or so. Both the employer and the employee have always been reliable and punctual.

On a particular day, the employee's shift was set from 10h to 14h.
The employee arrived punctually (as usual) at 10h00.
The employer arrived (unusually) half an hour late, at 10h30.
Between 10h00 and 10h20, the employee tried to call the employer twice, and sent an sms.

The employer's reason for the delay was an inadvertent double booking, so the employer did not call the employee to report the delay.
During the previous appointment, the phone was switched off, so the employer did not receive the employee's calls.

At 10h20, unable to reach the employer, the employee left, sending an sms that the shift was now cancelled.
At 10h30, the employer arrived, realised the double booking, and immediately called and smsed the employee, apologising for the error, and asking the employee to return.
The employee did not respond.

By Swiss law, if an employer prevents the employee from working, in other words if the employee cannot work because of the fault of the employer, then the employer owes the wages to the employee.

The employee is now of the opinion that this is the case and that the employee should be paid for the four hours of that day's shift.

The employer is of the opinion that the employee should have returned the employer's calls (since they were still during the arranged working hours, and during what was evidently unusual cirumstances) and should have come back to work when the employer called.

The employer says that the employee should certainly be paid for the first hour of waiting-and-returning, but that for the second, third, and fourth hour the employee did, indeed, have the opportunity to work and was not, in fact, prevented from working by the employer as the employee claims. Moreover, by refusing to take the calls, the employee was also refusing to work.

Please - could someone shed light on this, in terms of Swiss law or common practice?

Thank you very much.
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  #2  
Old 09.10.2018, 00:40
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Re: employer late - payment due?

Quote:
Originally Posted by doropfiz View Post
An employee has been working for an hourly wage, in four-hour shifts, once or twice per month, for about four years. The working times are agreed with the employer for the next month or so. Both the employer and the employee have always been reliable and punctual.

On a particular day, the employee's shift was set from 10h to 14h.
The employee arrived punctually (as usual) at 10h00.
The employer arrived (unusually) half an hour late, at 10h30.
Between 10h00 and 10h20, the employee tried to call the employer twice, and sent an sms.

The employer's reason for the delay was an inadvertent double booking, so the employer did not call the employee to report the delay.
During the previous appointment, the phone was switched off, so the employer did not receive the employee's calls.

At 10h20, unable to reach the employer, the employee left, sending an sms that the shift was now cancelled.
At 10h30, the employer arrived, realised the double booking, and immediately called and smsed the employee, apologising for the error, and asking the employee to return.
The employee did not respond.

By Swiss law, if an employer prevents the employee from working, in other words if the employee cannot work because of the fault of the employer, then the employer owes the wages to the employee.

The employee is now of the opinion that this is the case and that the employee should be paid for the four hours of that day's shift.

The employer is of the opinion that the employee should have returned the employer's calls (since they were still during the arranged working hours, and during what was evidently unusual cirumstances) and should have come back to work when the employer called.

The employer says that the employee should certainly be paid for the first hour of waiting-and-returning, but that for the second, third, and fourth hour the employee did, indeed, have the opportunity to work and was not, in fact, prevented from working by the employer as the employee claims. Moreover, by refusing to take the calls, the employee was also refusing to work.

Please - could someone shed light on this, in terms of Swiss law or common practice?

Thank you very much.
The employee agreed to spend 4 hours for the employer. Therefore the employee had nowhere to go in a rush.
The employer was reliable and punctual for four years. There is a good case to believe that something unusual kept employer from showing up.
Waiting 20 minutes is not long enough under the circumstances. Actually there is a law that employee must make his time available to do work within working-hours even if employer doesn't have work to do at the time. Therefore yes, employee should have returned when employer asked them to do so. Not to mention that employee can't have been gone very far within 10 minutes?

If the case is as you describe (and it kind of sounds like it as it sounds objectively described), the employer is right.
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Old 09.10.2018, 09:35
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Re: employer late - payment due?

Quote:
Originally Posted by doropfiz View Post
At 10h30, the employer arrived, realised the double booking, and immediately called and smsed the employee, apologising for the error, and asking the employee to return.
The employee did not respond.
Why?
Employee was asked to return after employer realized his error, but then chose not to respond or show up, and now wants money after all?

I fail to see how that would work. They probably waited long enough (don't think this is a firm law as in "you must wait x minutes before you can leave"), but then to not respond and return, well...

Agree with curley and the employer because of this:

Quote:
Originally Posted by doropfiz
The employer says that the employee should certainly be paid for the first hour of waiting-and-returning, but that for the second, third, and fourth hour the employee did, indeed, have the opportunity to work and was not, in fact, prevented from working by the employer as the employee claims. Moreover, by refusing to take the calls, the employee was also refusing to work.
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Old 09.10.2018, 09:42
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Re: employer late - payment due?

He waited 30 minutes, decided to leave and not respond to calls or sms and wants payment for 4 hours !!

Good luck with that, thd answer seems fairly obviouse and if he pushes, guess he can look for new job.

For me, the employee is 100% wrong, if hd had waited for the 4 hours at the meeting point he would have had a case.
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Old 09.10.2018, 09:55
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Re: employer late - payment due?

Thank you very much! These replies help. I am going to pass this on.

Do you agree that the employee is, indeed, entitled to payment for the 20 minutes in which the employee did wait? That's what I would have thought. Or even perhaps rounded up to half-an-hour.

After that, as I see it, the employee chose not to take the opportunity to work.
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Old 09.10.2018, 09:56
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Re: employer late - payment due?

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Originally Posted by Samaire13 View Post
Why?
Generally feeling annoyed, I suspect.
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Old 09.10.2018, 10:03
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Re: employer late - payment due?

Quote:
Originally Posted by curley View Post
The employer was reliable and punctual for four years. There is a good case to believe that something unusual kept employer from showing up.
Indeed, yes. Starting times, at this meeting point, were either at 10h or at 10h30, set each time, for several years. That arrangement never went wrong. On this particular occasion the employe it was clearly the employer's fault, in making the arrangement and specifying 10h when in fact it should have been 10h30.

For that reason, too, had I been the employee, I would have figured: "Oh, this is annoying, but maybe there's a misunderstanding/ miscommunication/ mess-up about whether it's 10h today, or 10h30. Since I've hung about till 10h20 already, I may as well stick around another ten minutes to see whether it was perhaps supposed to be 10h30 today." I don't know whether there would be any law or rule about that, except that it'd seem reasonable behaviour.

And at the very least I would have ensured that I could answer any incoming call that might arrive at 10h30.
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Old 09.10.2018, 10:49
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Re: employer late - payment due?

Quote:
Originally Posted by doropfiz
Do you agree that the employee is, indeed, entitled to payment for the 20 minutes in which the employee did wait? That's what I would have thought. Or even perhaps rounded up to half-an-hour.

After that, as I see it, the employee chose not to take the opportunity to work.
Probably but not sure if it's worth possibly making a fuss for some 10 or 15 bucks...
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Old 09.10.2018, 10:56
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Re: employer late - payment due?

Quote:
Originally Posted by Samaire13 View Post
Probably but not sure if it's worth possibly making a fuss for some 10 or 15 bucks...
Not meant as a snide remark, but if you need that money that urgently, why didnīt the person wait or at least react to the queries from the employer?
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Old 09.10.2018, 10:58
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Re: employer late - payment due?

Quote:
Originally Posted by doropfiz View Post
Thank you very much! These replies help. I am going to pass this on.

Do you agree that the employee is, indeed, entitled to payment for the 20 minutes in which the employee did wait? That's what I would have thought. Or even perhaps rounded up to half-an-hour.

After that, as I see it, the employee chose not to take the opportunity to work.



Sure he's entitled to payment for 20 minutes plus as an additional present, "don't bother coming back"


Is this all that has happened after 4 years of a successful collaboration ?


JUST LET IT GO, FORGET IT AND MOVE ON CONTRUCTIVELY
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Old 09.10.2018, 11:11
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Re: employer late - payment due?

Quote:
Originally Posted by roegner View Post
Not meant as a snide remark, but if you need that money that urgently, why didnīt the person wait or at least react to the queries from the employer?
What I'm thinking...

Quote:
Originally Posted by Today only
Is this all that has happened after 4 years of a successful collaboration ?
JUST LET IT GO, FORGET IT AND MOVE ON CONTRUCTIVELY
This.

I wouldn't risk 4 years of smooth collaboration for a few bucks.
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Old 09.10.2018, 11:24
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Re: employer late - payment due?

The employee showed up as per agreement.
The employer did not respond to two calls and a sms.
After the employee left, they did not respond to call/sms

Where is the difference and why is the employer entitled not to respond and the employee not?

I suggest employee is entitled for one hour pay as they had to go there - wait - return. After all, that employee probably works at other places too and could not get a job for that time as they were booked with employer.

It's a thing that went well for four years. Had employee not shown up, there would have been no pay. If employer doesn't show up a simple apology does not do although definitely due.

Time is money - for everybody!
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Old 09.10.2018, 11:28
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Re: employer late - payment due?

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Originally Posted by curley View Post

Where is the difference and why is the employer entitled not to respond and the employee not?
Donīt think it is a case of entitlement. Dumm gelaufen, as they say in german.

But, if the employee wants to be paid he would have to make himself available to work.
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Old 09.10.2018, 11:36
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Re: employer late - payment due?

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Originally Posted by roegner View Post
Donīt think it is a case of entitlement. Dumm gelaufen, as they say in german.

But, if the employee wants to be paid he would have to make himself available to work.
He did.

An employee does not deserve less respect than an employer.

PS: Some doctors/dentist etc. charge you too, if you don't show up. Legally so.
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Old 09.10.2018, 11:51
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Re: employer late - payment due?

If the employee manage to get paid for the 4 hours let me know

He is paid for his time he spends doing agreed work. When he cannot do the work he's still being paid for his time spend being ready to do the work.
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Old 09.10.2018, 11:57
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Re: employer late - payment due?

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Originally Posted by Leszek View Post
If the employee manage to get paid for the 4 hours let me know

He is paid for his time he spends doing agreed work. When he cannot do the work he's still being paid for his time spend being ready to do the work.
But the employee wasnīt ready to do the work?
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Old 09.10.2018, 12:01
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Re: employer late - payment due?

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Originally Posted by curley View Post
Where is the difference and why is the employer entitled not to respond and the employee not?
That's not how I read or interpret it. The employer DID respond, albeit with delay, implying that something probably came up that couldn't be helped. Not everyone has their phone ready at all times, and clearly, the employer made a mistake, apologized for it, and tried to resolve the issue immediately.

It appears though that the employee didn't react at all, not immediately, and not at (much) later point either. That to me implies he ignored the calls/messages on purpose.
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Old 09.10.2018, 13:43
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Re: employer late - payment due?

Thank you everyone, this has been a very helpful discussion with useful perspectives. Will get back to you later, when I know the next part.
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Old 09.10.2018, 14:07
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Re: employer late - payment due?

Quote:
Originally Posted by Leszek View Post
If the employee manage to get paid for the 4 hours let me know

He is paid for his time he spends doing agreed work. When he cannot do the work he's still being paid for his time spend being ready to do the work.
Naaa, not four hours for sure.
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Old 09.10.2018, 16:15
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Re: employer late - payment due?

During the agreed work hours the employee's time is the employer's, in exchange for the salary. The employer is free to order the employee to do stuff, within the limits of reason, their contract, and the law.

Lack of employer's instructions doesn't void the contract, it just means no work gets done, the employee has to be at the ready anyway. For example, this is the reason why you are to inform your (former) employer about your willingness to work if you get sacked and he sends you on garden leave, you want to make sure your not showing up can't be misinterpreted.

So yes, the 20mins are to be paid but not the rest. The offer of 1 hour pay is more than legally required as the employee unilaterelly cancelled the contract (which they should be glad doesn't raise any issues) by leaving at 10:20.

IMHO the employee should have waited at the very least until the alternative beginning time (misunderstanding happen) plus some margin, say until 11am, especially as this arrangement has worked flawlessly for four years. Mistakes and accidents happen.
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