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Pension age cannot be considered as a legal ground to terminate an employment contract

August 27, 2020

Labor Rights | Activities | Legal Support | Legal Support | Project։ Stability of HCA Vanadzor in the light of democracy and human rights challenges in the Republic of Armenia 2020 | Publications | News

Article 29 of the RA Constitution, among other grounds, also establishes prohibition of discrimination based on age.

 

According to Article 57 part 1, “Everyone shall have the right to free choice of employment”. According to part 2 of the same Article, “Every worker shall have the right to protection against unjustified dismissal from work. The grounds for dismissal from work shall be prescribed by law”.

 

According to Article 24 point a of the Revised European Social Charter (ratified by the RA), “With a view to ensuring the effective exercise of the right of workers to protection in cases of termination of employment, the Parties undertake to recognise: a) the right of all workers not to have their employment terminated without valid reasons for such termination connected with their capacity or conduct or based on the operational requirements of the undertaking, establishment or service(...)”.

 

The grounds for termination of an employment contract at the initiative of the employer are established in Article 113 of the RA Labor Code, according to point 11 of part 1 of which, “The employer shall have the right to terminate the employment contract concluded with the employee for an indefinite time period, as well as the employment contract concluded for a fixed time period before the end of the validity period, in case the person with the right to age pension has reached the age of 63 and the person not having the right to age pension has reached the age of 65, if the relevant ground is envisaged in the employment contract”. According to Article 114 part 4 point 5 of the RA Labor Code, “Age shall not be considered a legal ground for the termination of the employment contract, except for cases provided for by law”.

 

According to the mentioned law, the employment contract signed with the employee shall not be terminated without legal reasons for such termination connected with the employee’s capacity or conduct or based on the operational requirements of the undertaking, establishment or service.

 

Among the problems recorded by HCA Vanadzor in labor rights protection sphere, a particular place is taken by cases of violation of the rights of persons who have reached pension age. This shows that there are a lot of cases of age-based termination of employment contracts with persons who have reached the age of pension. As we have already mentioned, this cannot be considered legal.

 

In DCC-991 of 11 October 2011, the RA Constitutional court touched upon the legality of terminating an employment contract with an employee based on the condition that he/she has reached the pension age. In the decision the Court recorded that the exercise of the employer’s right to terminate an employment contract must not be connected with convenience or any other factor of subjective nature, but should pursue a fair, legally enshrined specific aim in compliance with the constitutionally enshrined principles of the exercise of the right to work. By the mentioned decision, RA Constitutional Court recognized anticonstitutional the termination of an employment contract based on the condition that the person has reached the pension age, by considering it as discrimination. Thus the Court came to the conclusion that one of the main problems of the state is to exclude the possibility of unilateral termination of an employment contract at the discretionary initiative of the employer based on age. 

 

In the frame of one of the cases conducted by the Organization, Rima Dunamalyan, who had worked for 13 years, received a notification from the employer in January 2019, where it was stated that she was to be made redundant in March 2019. In March, she was dismissed based on the condition that she has reached her pension age.

 

Due to the legal support provided by the Organization, Rima Dunamalyan’s labor rights were restored. Besides, Lori region General Jurisdiction Court, presided by judge A.Mkoyan, who examined the case, recorded that “When dismissing Rima Dunamalyan according to Article 113 part 1  point 11 of the RA Labor Code, the employer violated rules envisaged by domestic legislation and the employment contract. That is, the order to dismiss Rima Dunamalyan is not legal, and there are grounds to recognize it invalid, therefore, Rima Dunamalyan’s application’s relevant claim is subject to be upheld”.

 

Citizens who find themselves in similar situations can apply to HCA Vanadzor to get the necessary legal aid. And all the persons who were made redundant based on the condition that they have reached pension age, can present their cases to the Organization, and this will give an opportunity to find out the situation of labor rights violations based on age.

 

You can apply to HCA Vanadzor at the following contacts.

 

With matters on social, educational, labor rights

Sofya Petrosyan

077-930-579 (also viber, signal)

spetrosyan@hcav.am

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