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Is determining the change of the superior or immediate supervisor as a ground for terminating the public servant’s service in line with the RA legislation and international obligations undertaken by the RA

September 3, 2021

Labor Rights | Activities | Law Enforcement Practice Analysis | Publications | News | Legislative Proposals and Analysis

HCA Vanadzor hereby presents its position on Article 6 clause 2 and clause 3 of the RA Law on Public Service.

 

In this position we address the question whether determining the change of the superior or immediate supervisor as a ground for terminating the public servant’s service is in line with international obligations undertaken by the Republic of Armenia and public service principles of the prohibition to dismiss an incumbent - enshrined in Article 12 of the Law - which is part of free choice of employment. 

 

It stems from the analysis of Article 6 of the RA Law on Public Service that

 

1․an administrative official may be replaced as a result of the change in the ratio of political forces, and

2․ change of an administrative official’s superior or immediate supervisor automatically, i.e., in a compulsory procedure, makes the administrative official a temporarily acting incumbent, who holds the office until a new incumbent is employed for that position.

 

The judicial practice views part 2 and part 3 of Article 6 of the Law as independent, separate grounds for halting employment, and violation of incompatibility requirements set by Article 31 of the Law or a ground enshrined in Article 113 of the Labor Code should not necessarily be in place for termination of labor relations with an administrative official. 

 

Termination of labor relations with an administrative official in case of the change of the administrative official’s political superior or immediate supervisor only at the arbitrary, subjective discretion of the newly appointed head, without an objective ground, is not in line with the public service principles set in Article 12 of the Law, since public service is based on performance of functions based on merit and professional competence, basic principles of public service stability and ungrounded interference. Whereas, change of the superior or immediate supervisor leads to arbitrary interference, instability of state and public service and termination of service for reasons not related to obligations or conduct of the public servant. 

 

The Revised European Social Charter states that termination of labor relations of public servants should be conditioned only by the employee’s capacity or conduct; in other words, it is not admissible to terminate employment for reasons not related to the employee. Therefore, in this context, it goes against international legal practice to view regulations enshrined in part 2 and part 3 of Article 6 of the Law as independent, separate grounds for employment termination.

 

Thus, part 2 and part 3 of Article 6 of the Law on Public Service contradict Article 12 of thr Law on Public Service, part 2 of Article 6 of the Law on Fundamentals of Administration and Administrative Proceedings, Article 57 and Article 81 of the Constitution and Article 24 of the European Social Charter. 

 

It is therefore necessary to review the aforementioned legal regulations by making them in line with the RA Constitution and international legal standards formed in labor rights protection sphere. 

 

Read the full position HERE

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