According to the provisions of § 34 paragraph 1 of Act No. 262/2006 Coll., the Labor Code, as amended (hereinafter referred to as the "Labor Code"), the type of work, the place or places of work and the day of starting work are mandatory elements of every employment contract.

Although the Labor Code expressly allows only the negotiation of multiple places of work, there is no doubt that it is also possible to validly negotiate more types of work. This plurality of options has its advantages for both sides of the employment relationship. It allows the employer to respond flexibly to the emergence or, conversely, the disappearance of the need to perform certain jobs or to the ability or inability of the employee to perform a certain type of work, because he has the right to determine which type of work will be performed at the moment. It then gives the employee a certain increased certainty of maintaining employment, if the employer does not have the option of assigning one of several agreed jobs (types of work).

A different amount of wages is usually associated with each alternatively negotiated type of work. In practice, there are known cases where the employer abuses the possibility of an alternative type of work by forcing the employee to negotiate two completely different types of work, one of which (mostly unskilled work) is associated with a significantly lower wage. At the moment when the employee becomes uncomfortable, the employer assigns him the performance of the unqualified work and thus wants to force him to terminate the employment himself by giving notice. It is a question of how the court would assess such a case if the employee did not terminate the employment relationship, refused to perform unskilled and lower paid work (on the grounds that this type of work was contracted invalidly and that the employer does not actually need him to perform this type of work, but wants to force him to terminate the employment relationship) and would demand the allocation of work according to the second type of work. The dispute would probably come to court on the basis of the employee's claim for the invalidity of the immediate termination of the employment relationship, which the employer would give the employee for long-term unexcused absence or violation of the work obligation to perform work according to the agreed type of work. Of course, it is also possible to imagine an employee's lawsuit for payment of wage compensation in the event of obstacles to work on the part of the employer (who would not assign the employee the primarily agreed work). As follows from the decision of the Supreme Court of the Czech Republic issued under sp. stamp 21 Cdo 1821/2008, the assessment of whether the type of work was validly agreed (or whether there is no circumvention of the law) is always a matter of a specific case. The Supreme Court of the Czech Republic states in the judgment: "The type of work is an essential element of the employment contract, the contractual freedom of the participants of the employment relationship is exercised during its negotiation. The legislation did not set any restrictions in this direction; allows the agreed type of work to be defined narrowly or, on the contrary, more broadly, it also allows the type of work to be agreed in such a way that more types of work are specified in the employment contract, etc. It is understandable that in an individual case, when, for example, an excessively high number of types of work is agreed upon , doubts cannot be ruled out as to whether the law is being circumvented. The assessment, the boundary, when the type of work was validly agreed, is therefore always a matter of a specific case."[1]

As mentioned above, the employment contract can also be negotiated as an alternative place of work [2]. The Labor Code does not explicitly limit this possibility. The place of performance of work can be agreed in any way in the employment contract, as long as it is clear from the statement what the parties to the employment contract had in mind. It can include the entire Czech Republic, a specifically marked municipality or several municipalities, or it is possible to specify them with a specific address or addresses. Within the agreed place or places of work, the employee is then obliged to perform work according to the employer's instructions.
This procedure is especially practical for employers who have several establishments and it is therefore likely that sometimes the employer will need a specific employee at a different establishment than usual. If the parties have agreed on this in the employment contract, it means that the employee agrees to the performance of work at several locations, and the employer can assign him work at these agreed locations as needed and does not need further express consent from the employee. Changing the place where the employee is currently working, within the framework of several agreed work locations, is not a transfer to which the employee would have to agree again.

The above is also confirmed by the Supreme Court of the Czech Republic in its recent decision issued on 19 July 7 under file no. stamp 2016 Cdo 21/2680. In this proceeding, the plaintiff - the employee demanded that the court determine the invalidity of the notice pursuant to § 2015 letter g) of the Labor Code (for "especially gross violation of work duties"), which she received from her employer. The whole problem was based on an alternatively agreed place of work. In the employment contract, the parties originally agreed on the village of P. as the place of work; in fact, the employee worked in this municipality at a specific address. Later, the parties concluded an amendment to the employment contract, in which it was stipulated that the employee would also work from her place of permanent residence. The place of performance of the work has thus been negotiated as an alternative since the conclusion of the amendment. Subsequently, the employer informed the employee that the address of the actual performance of work was changing to another address within the municipality of P., which did not in any way contradict the concluded employment contract as amended above. However, the employee continued to do most of her work from her place of residence. Subsequently, she was invited by the employer to come to the place of work in P. However, the employee continued to work for the most part from her place of permanent residence, which according to her was in accordance with the employment contract (she assumed that she had the right to choose). Subsequently, the employer terminated her employment in accordance with § 52 letter g) of the Labor Code, because "despite the fact that in the letter dated 2/6/2013 she was assigned the place of work P., N.Š., in the period from 10/7/2013 to 10/9/2013 she came to the designated place of work only 8 times and she didn't show up 37 times without a proper excuse" [3]. The employment contract did not explicitly state who is authorized to determine in which of the two workplaces the employee will perform work. The Supreme Court of the Czech Republic concluded that, with regard to the nature of work performance as dependent work, it is legally the employer who is entitled to choose one of the agreed work performance locations, and the employee is obliged to comply with such an instruction.

"Labor law relations arising during the performance of dependent work between employees and employers are governed by the Labor Code [cf. § 1 letter a) Act work]. Dependent work is work that is performed in the relationship between the employer's superior and the employee's subordinate, on behalf of the employer, according to the employer's instructions, and the employee performs it personally for the employer. Dependent work must be performed for a wage, salary or remuneration for work, at the expense and responsibility of the employer, during working hours at the employer's workplace, or at another agreed location. Dependent work can be performed exclusively in an employment relationship according to the Labor Code, if it is not regulated by special regulations (cf. § 3 sentence one of the Labor Code). The basic defining feature of dependent work, which distinguishes it from civil law and commercial law relations, is the fact that this work is performed in a relationship of superior and subordinate between the contracting parties. It also follows from this that it is the employer who, within the limits set by the employment contract and other labor law regulations, determines all the circumstances of the employee's specific performance of work. Therefore, if the place of work performance is agreed between the employee and the employee more broadly than just the workplace (the place of work performance is identical to the workplace), the employer always determines the workplace (the place where the employee performs his work tasks according to the employer's instructions) within the place of work performance. This also applies in situations where more than one place of work is agreed upon between the participants in the employment relationship. Even in such a case, it is the employer who determines in which of the several agreed workplaces (at which workplace) the employee will perform work."[4]

It therefore follows from the above that employees should thoroughly consider their consent to an alternatively agreed type or place of work performance when signing an employment contract. An employment relationship is a private law relationship where the employer and employee are equal in their position, and it must be assumed that in the event of a dispute, the court will probably respect the contractual freedom of the participants in the employment relationship in most cases. Thus, the employee should not agree to perform a type of work that he is not actually willing to perform, or that has consequences for him that he is not willing to accept (lower pay, increased responsibility). The same applies to multiple agreed workplaces. Given that dependent work is performed as part of the employment relationship, it is precisely the employer who unilaterally determines in which of the alternatively agreed work performance locations which of the agreed types of work is to be performed.

Source: EPRAO.CZ Digital

The team of the Vych & Partners, s.r.o. law office

[1] This dispute concerned the assessment of the validity of the agreement on the negotiation of an alternative type of work for a saleswoman - deputy store manager (as a preliminary issue) in the context of a dispute over the payment of damages based on liability for a shortfall in entrusted values ​​with seven female employees of the store. The Supreme Court of the Czech Republic respected and emphasized the contractual freedom of the parties when negotiating the type of work and did not find that the agreement was invalid in the given case.
[2] This article does not deal with the issue of a regular workplace or travel allowances.
[3] Quoted from the judgment of the Supreme Court of the Czech Republic issued under file no. 21 Cdo 2680/2015.