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The Appeal Court recognized invalid the order made by violation of law

September 9, 2021

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The Appeal Court upheld the appeal filed by HCA Vanadzor and recognized invalid the order to dismiss A.Kh., overturned the claims to reinstate in the position, levy average salary for the whole period of enforced idleness, levy 12 times the average salary as compensation in case of failing to reinstate, and referred the case to be examined anew. 

 

Since December 2014, A.Kh. worked in Dilijan State College as a commandant and the job was considered as the main one according to the contract. In October 2018, an agreement was signed which amended clause 1.2 of the contract and A.Kh. was transferred to the position of computer operator, while according to clause 2, all the other clauses remained unaltered. In the same year, A.Kh. was appointed as a lecturer according to the principle of internal multiple employment. 

 

Later, in February 2020, he received a notice that according to the protocol of 3 March 2020 session of Collegial Management Body, the staff list of the SNCO was amended based on 20.01.2020 letter of the Minister of RA Education, Science, Culture and Sports, and Head of the Board signed a document which removed the position of computer operator. However, a number of other positions were included in the same staff list  - including computer-technical officer, cleaner, etc. - which were not offered to A.Kh. as provided for by the law. As a result, the employment contract of “computer operator” was terminated and he was dismissed. 

 

A.Kh. considered termination of the contract illegal and applied to Court. HCA Vanadzor advocate Ani Chatinyan undertook protection of his labor rights.

 

It is noteworthy that when A.Kh. was dismissed, he was not paid the dismissal benefit, which is not paid only in case of a contract of multiple employment, but he was dismissed from his main job and was supposed to be paid the dismissal benefit in the amount of the average monthly salary. He was also not offered another job in the SNCO relevant to his professional competence, qualification and health state, as provided for by the legislation. 

 

Besides, the letter of the RA Ministry of Education, Science, Culture and Sports on making amendments to the staff list - which the SNCO presented as one of the legal grounds for terminating the contract - was only directive and not a legal norm, it was presented only to determine the purposefulness of the discussion.

 

Taking into account the aforementioned facts, A.Kh.’s legal claims were presented to the RA Tavush Region General Jurisdiction Court of First Instance: to get reinstated in the position, levy the average monthly salary for the whole period of enforced idleness, levy 12 times the average salary as compensation in case of not being reinstated. 

 

On 22 January 2021, the Court of First Instance made a judgment to partly uphold A.Kh.’s claim by levying from RA ESCS Ministry Dilijan State College SNCO money in the amount of average monthly salary as dismissal benefit, and rejected the rest of the application.

 

A.Kh. appealed the Court’s judgment with regard to the other claims.

 

The Appeal Court finds that the employer should, in a manner set by law, offer currently available vacancies to the employee being dismissed, taking into account the relevant person’s professional competence, qualification and/or health state, irrespective of the condition how that offer might be perceived by that person ethically or some other way. When terminating the employment contract, the position of the cleaner was vacant  and A.Kh. was fully appropriate for that position, but it was not offered to A.Kh., which is, itself, a violation of the law. 

 

Taking into account  the mentioned facts, on 7 July 2021, the Appeal Court recognized the employment termination order invalid and overturned the judgment parts concerning the claims to reinstate A.Kh., levy the average monthly salary for the whole period of enforced idleness, levy 12 times the average salary in case of failing to reinstate A.Kh., and referred the case to be examined anew.

 

Thus, in case of being dismissed from the main job, the Law provides that if there are vacant positions relevant to that person’s professional knowledge and physical abilities, the employer should offer those positions to that person. It should also be noted that no directive - presented for discussion and not constituting a legal norm - can be a ground to reduce a staff position. 

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