Employment lawyer: when you need one, who may represent you in a dispute

An employment lawyer helps an employer or an employee before a dispute arises and represents them before the Labour Disputes Commission (darbo ginčų komisija, DGK) and in court. Before the DGK, a dispute is heard with the parties and/or their representatives taking part (Article 226(1) of the Labour Code of the Republic of Lithuania (DK)), but the parties’ litigation costs are not awarded there (DK Article 217(3)). In court, a natural person may be represented under a mandate by, among others, an advocate, an advocate’s assistant with the written permission of the supervising advocate, or a trade union representing its member in a labour case (Article 56(1) of the Code of Civil Procedure (CPK)). An advocate’s assistant may represent only in courts of first instance, and only after the Lithuanian Bar has approved the report on completing one year of practice (Article 34(2) of the Law on the Bar of the Republic of Lithuania (AdvĮ)). The winning party may recover the cost of an advocate’s assistance from the losing party (CPK Article 98(1)), while the cost of other legal service providers is not reimbursed under this procedure (CPK Article 88(3)).

How to file with the DGK, and by when, is covered in our article Labour Disputes Commission in Lithuania: how to file and by when. Here we cover who may represent you, which costs are reimbursed, and how a labour case in court differs from other cases.

When to contact an employment lawyer

• Before dismissing an employee, or once you receive a dismissal notice. In dismissal cases, the employer must prove that the dismissal was lawful (DK Article 214(3)). For the employer, this means the evidence must be prepared before the decision. For the employee, this means a dismissal can be challenged without holding all of the employer’s documents. Which documents a dismissal requires is covered in Dismissing an employee in Lithuania: which documents, in which order.
• When the deadline is short. You must apply to the DGK within three months, or within one month for unlawful suspension, unlawful dismissal and breach of a collective agreement, counted from when you learned or should have learned of the breach (DK Article 220(1)). What to do after an unlawful dismissal is covered in Unlawfully dismissed in Lithuania? What to do and the deadline to act.
• When you disagree with the DGK decision. A claim may be brought in court within one month from the day the DGK decision was adopted (DK Article 231(1)). The DGK decision is not subject to appeal or review (DK Article 231(4)), and the court hears the dispute on the merits (DK Article 231(3)).
• When arbitration is proposed. A labour dispute concerning rights may be heard in commercial arbitration only if the parties agree to this after the dispute has arisen (DK Article 216(2)). An arbitration clause in an employment contract, agreed before any dispute, does not meet this requirement.

Who may represent you before the Labour Disputes Commission

A labour dispute before the DGK is heard with the claimant and the respondent and/or their representatives, and witnesses, taking part (DK Article 226(1)). So you may attend the hearing yourself, together with a representative, or send only a representative.

At the hearing, the chair explains the substance of the dispute and invites the parties to reach an acceptable agreement and conclude a settlement agreement (DK Article 226(7)). It is therefore worth knowing in advance on what terms you would be willing to settle.

The DGK’s costs of hearing labour disputes are paid by the State Labour Inspectorate (Valstybinė darbo inspekcija) from the state budget (DK Article 222(2)). However, the litigation costs incurred by the parties are not awarded by the DGK (DK Article 217(3)). This means that the DGK will not award you the cost of an advocate’s assistance against the other party, even if you win.

Who may represent you in court

A natural person, for example an employee, may be represented in court under a mandate by, among others (CPK Article 56(1)):

• advocates;
• advocates’ assistants holding the written permission of their supervising advocate to represent in the specific case;
• persons with a university degree in law, when they represent their close relatives or spouse (cohabitant);
• trade unions, when they represent their members in cases on employment relations;
• associations or other public legal persons whose founding documents state the defence and court representation of a certain group of persons, when they represent their members without remuneration in cases on legal relations directly related to the aims and field of activity set in their founding documents.

A legal person, for example an employer company, may be represented in court under a mandate by, among others, advocates, advocates’ assistants with the written permission of their supervising advocate, its own employees holding a university degree in law, and employees holding such a degree of its parent company, its subsidiary, or another subsidiary of its parent company, other than members of management bodies (CPK Article 56(2)).

An advocate’s assistant may represent only in courts of first instance, and only after the Lithuanian Bar has approved the report on completing one year of practice (AdvĮ Article 34(2)).

Which costs are reimbursed in court

• Court fee (stamp duty). Employees are exempt from the court fee in cases on all claims arising from employment relations (CPK Article 83(1)(1)).
• The winner is reimbursed. The court awards the litigation costs of the party in whose favour the judgment is given against the other party (CPK Article 93(1)). If the claim is granted in part, the costs are split in proportion to the part of the claims granted and dismissed (CPK Article 93(2)). So an employee who loses the case may have to cover the employer’s costs. The court may depart from these rules, taking into account whether the parties’ procedural conduct was proper and assessing the reasons why the litigation costs arose (CPK Article 93(4)).
• An advocate’s assistance. The costs of an advocate’s or advocate’s assistant’s help in hearing the case, drafting procedural documents and giving consultations are awarded. You must file a written request with the calculation and justification of the costs. If the request and the evidence of the amount are not filed before the end of the hearing on the merits, these costs are not awarded (CPK Article 98(1)).
• Limits. The costs of an advocate’s assistance are awarded no higher than set in the recommendations approved by the Minister of Justice together with the Chair of the Lithuanian Bar Council (CPK Article 98(2)).
• Services of non-advocates. The cost of legal services provided by persons other than advocates and advocates’ assistants is not treated as necessary and reasonable expenses and is not reimbursed under this procedure (CPK Article 88(3)).
• Pay discrimination. In such cases, the court may depart from the CPK rules on the allocation of litigation costs, having assessed whether the parties’ procedural conduct was proper (DK Article 217(4)).

How a labour case in court differs from other cases

• The DGK comes first. If you went to court without following the mandatory pre-trial procedure, the court refuses to accept the claim or leaves it unexamined. The day you apply to the DGK is then treated as the day you applied to court, if you apply to the DGK no later than fourteen days from the day the court’s ruling was served on you (CPK Article 412(1)). If the DGK has earlier found that it lacks competence to decide the dispute, the court hears the case (CPK Article 412(2)). A labour dispute concerning rights connected with a strike or lockout is heard directly in court (DK Article 220(3)).
• Where to sue. An employee may file the claim under the general rules of jurisdiction or at the place where the work is, was or should have been performed (CPK Article 411(2)).
• Deadlines for the court. Preparation for the hearing must be completed no later than thirty days from the day the claim was accepted (CPK Article 413(1)), and the case must be heard no later than thirty days from the end of the preparation (CPK Article 413(3)).
• An active court. The court has the right to collect evidence on its own initiative if it considers this necessary to decide the case correctly (CPK Article 414(1)). Where the claimant is the employee, the court, having regard to the circumstances of the case, requests from the employer the documents on hiring and dismissal, disciplinary penalties, average pay and other necessary documents, if the employee cannot provide them (CPK Article 415(1)).
• More than was asked. In a case on an employee’s claim, the court of first instance may grant more than was claimed and decide on claims that were not made but are directly related to the claim (CPK Article 417).

How to start

Send us the employment contract, the order or notice you dispute, your correspondence with the other party, and tell us when you learned of the breach. We will assess the deadline and propose how to proceed before the DGK or in court.

Phone +370 5 212 1506, email info@linden.lt

More about this service: Solving labour disputes.