Tips are accepted benefits in practice. Can they be qualified as part of the employee’s pay? This issue was raised by the Supreme Court in its judgment of August 6, 2019 (II PK 122/18).
Claimant A. S. was employed by the defendant as a dealer. The employment contract sets a minimum wage and allowance for night work. The tips that employees received from customers were divided according to the seniority of the entire staff. Accordingly, tips constituted a significant proportion of all employees’ remuneration. The plaintiff after many years of work received a notice of dismissal and was entitled to severance pay in the amount of three months’ salary.
Severance pay did not include tips, only the amount of three salaries. Due to this, the claimant demanded payment of compensation for lost benefits due to employment relationship due to tips.
The Supreme Court emphasized that the employment contract produces effects not only expressed in it, but also those that result from the Act, the principles of social coexistence and established customs. In addition, in the absence of explicit statutory regulation, the usual practice is decisive, in this case the practice of additional remuneration of employees from the pool of registered and collected tips. The Supreme Court found that limiting the long-term employee’s remuneration to the minimum wage alone was clearly unacceptable, as it would constitute a low remuneration. It is important that the disputed income in the form of a percentage share of the tip would not have arisen without the work done by the employees.
The Supreme Court mentioned that the system of obtaining funds from tips paid to employees organized by the employer allows offering them lower basic salaries. Undoubtedly, a source of the employer’s obligation to pay an additional bonus equivalent for work arose, which significantly supplements the basic remuneration set at the low level of the minimum remuneration for work.
The Supreme Court ruling therefore decides that the percentage share in the fund raised from tips is a claim against the employer. Tips are therefore a source of payroll obligations and the employee is fully entitled to this part of their remuneration.