Religion in Labor and Public Service

Introduction

The mechanisms for guaranteeing the religious beliefs in labor and public service are mainly confined between the freedom of labor and the right of not involving in religious discrimination. The freedom of labor and the right of not involving in religious discrimination mainly operate simultaneously, and the violation of one of them interdependently leads to the violation of the other one.

The above-mentioned can be conditionally divided into two parts: private legal relations and public legal relations. In case of the first one, freedom and right should be ensured by a private citizen and in case of public legal relations by a person with state administrative powers. Therefore, in terms of content and structure, the separation of the above-mentioned relations is essential for choosing the method of dispute settlement.

Labor and public service in the Republic of Armenia are mainly defined by legislative and precedential interpretations, which, having improved over the years, have made it quite predictable.

Applicable Legal Principles

RA Constitution

The principles of regulation of labor and public service are defined by RA Constitution, Article 41 /1st and 2nd parts/, Articles 29, 45, 57, 58 and 82.

These Articles guarantee the freedom to manifestation of religion or beliefs, the right of not involving in discrimination based on those beliefs, the freedom of employees to association with others, including the membership in religious organizations, the right to free choice of employment, the labor rights, the right to protection against unjustified dismissal from work, the right to strike and minimum working conditions.

It follows from the above-mentioned constitutional regulations that people with religious beliefs have equal rights in employment relations and equally enjoy the guarantees defined by the RA Constitution.

 

International Agreements

Principles of regulation of labor and public service are also defined by the following international agreements verified by the Republic of Armenia:

  • Convention  For the Protection of Human Rights and Fundamental Freedoms  /Articles 9, 14/

According to the 1st part of the Protocol 1 of the Convention, every physical or legal person shall be entitled to the peaceful enjoyment of the possessions thereof. No one shall be deprived of his/her possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

Within the meaning of the Convention the salary itself is a property and the above-mentioned guarantee shall be applicable to the salary.

  •  Revised European Social Charter  /Articles 2, 22, Part 5, Article E./

The person may also apply or refer to:

  • the Convention On Protection of Wages  in the disputes concerning wages,
  • the Convention On Forced or Compulsory Labor  in the disputes concerning forced or compulsory labor,
  • the  Universal Declaration of Human Rights (Article 18),
  • the International Covenant on Civil and Political Rights (Article 18),
  • the Convention for the Protection of Rights of National Minorities (Article 8).

The Constitution and the principles set out in the above-mentioned international legal acts guaranteeing the freedom of religion, oblige the state bodies to ensure the realization of that right within the framework of such legal preconditions, according to which the state should not interfere in the exercise of those freedoms; it should also define effective legal mechanisms to secure those freedoms from any kind of unlawful interference.

The Applicable Decisions of the Cassation and Constitutional Courts Concerning Labor Disputes

Decisions of the Court of Cassation

  • Decision of the Court of Cassation number ESHD/0906/02/13,
  • Decision of the Court of Cassation number EAQD/1879/02/11,
  • Decision of the Court of Cassation number EKD/2335/02/14,
  • Decision of the Court of Cassation number EKD/2058/02/13,
  • Decision of the Court of Cassation number KD/0740/02/14,
  • Decision of the Court of Cassation number EAQD/0008/02/14.

 

Decisions of the Constitutional Court on Labor Law

  • Decision of the Constitutional Court number SDO-677,
  • Decision of the Constitutional Court number SDO-792,
  • Decision of the Constitutional Court number SDO-891,
  • Decision of the Constitutional Court number SDO-896,
  • Decision of the Constitutional Court number SDO-902,
  • Decision of the Constitutional Court number SDO-991,
  • Decision of the Constitutional Court number SDO-1038,
  • Decision of the Constitutional Court number SDO-1449,
  • Decision of the Constitutional Court number SDO-1506.

 

Religion in Labor Relations

In the Republic of Armenia labor relations are mainly regulated by the Labor Code adopted on 9 November 2004.

Among the principles of the labor legislation the following ones are set forth: the principle of the legal equality of the parties of labor relations irrespective of their gender, race, nation,  language, origin, citizenship, social status, religion, marital  and family status, age, beliefs or views, membership in political parties, trade unions or non-governmental organizations, other circumstances not related to the professional skills of an employee, as well as the principle of equality of rights and opportunities of employees (Article 3, part 1, points 3, 5).

Discrimination is prohibited under the RA Labor Code, defining it as any direct or indirect differentiation, exclusion or restriction due to a number of features or circumstances, including religion, worldview, views, the purpose or effect of which is the manifestation of less favorable attitude in cases of derivation and (or) change and (or) termination of collective and (or) individual labor relations or the prohibition or denial of the recognition and (or) realization of any right defined under the labor legislation on equal bases with others; except for the cases when such differentiation, exclusion or restriction are objectively justified by the lawful purpose pursued, and the means applied to achieve that purpose shall be proportionate and necessary (Article 3.1).

At the same time, it is prohibited for the employer to define any other conditions that are a basis for discrimination in the job announcements (competitions) and during the realization of labor relations, except for the practical features, professional skills and qualification, unless it arises from the requirements inherent in the job. This norm gives an opportunity to the individuals, in case of detecting impossibility of starting labor relations due to religious beliefs in the job announcements or during work, to challenge that process, and as a result, to claim the fact of confirmation of discriminatory treatment.

Thus, the RA Labor Code defines the legal content of the prohibition of discrimination, which in case of existence of a case on religious discrimination in labor relations, shall allow, by juxtaposing the set of facts of the case with the norm, to find out whether there is a fact of discrimination or not.

However, it should be noted that the norm prohibiting discrimination is more of a declarative nature, as the legislator does not define the specific legal consequences thereof.

It is also necessary to take into consideration that labor relations are also regulated by the employment contract and by the internal legal acts of the employer.

The internal and individual legal acts of an employer shall be adopted in the form of orders or decrees, and in cases prescribed by the legislation - in the form of other legal acts. Where internal and individual legal acts contain provisions that are less favorable than the conditions prescribed for the employees by labor legislation and other regulatory legal acts containing norms of labor law, such acts or the relevant parts thereof shall have no legal effect.

Internal legal acts shall be adopted in cases when the internal disciplinary rules, work (shift) and rest timetables (schedules) of an organization are approved, employees are involved in overtime work and duty, as well as in cases provided for by this Code and other legal acts. The employer shall adopt individual legal acts aimed at regulation of individual labor relations.

The internal and individual legal acts adopted by the employer shall enter into force upon duly informing the corresponding persons about that act, unless another term is provided for by those legal acts. One copy of an individual legal act on accepting for employment, as well as on termination of the employment contract, shall be delivered to the employee within three days following the adoption thereof.

Here it is necessary to be careful to distinguish between the internal legal acts of the employer and the individual legal acts of the employer, as there is a consistent judicial practice that the employees have the right to challenge the individual legal acts concerning them; and in the case of challenging the internal legal acts, the courts reject them on the ground that those documents are not personalized, so they are not subject to challenge by other persons.

It is defined by the Article 276 of the RA Labor Code, that upon the request of the employee, unpaid leave shall be granted to the employee to celebrate the national, religious holidays or memorial days, no longer than four days within a year.

Termination of the Employment Contract

The grounds for termination of the employment contract are defined by the Article 109 of the RA Labor Code. These grounds are applicable for the contracts signed both for a definite term and for an indefinite term, except for the 2nd point of the part 1, which is applicable only for contracts signed for a definite term.

Taking into account the manifestations of hidden religious discrimination in practice, we consider it necessary to speak about the following 3 grounds for the termination of the employment contract:

  • upon the consent of the employer and the employee,
  • upon the initiative of the employee,
  • upon the initiative of the employer.

There are in practice cases when the employer, having a discriminatory attitude towards the employee on the ground of religion, wants to get rid of him/her by hiding the real motive - the religious discrimination.

For this purpose, the employer takes a number of measures. In particular, the employer:

  • for various reasons pushes or persuades the employee to submit an offer on termination of the employment contract in order to ensure the formal part of terminating the contract upon the consent of the parties;
  • creates such a working atmosphere or situation as a result of which the employee himself/herself submits his/her resignation, ensuring the formal part of terminating the contract upon the initiative of the employee;
  • terminates the contract upon its own initiative, formally maintaining the grounds defined by the Article 113 of the RA Labor Code

If the employee considers that he/she has been a victim of religious discrimination, as a result of which he/she has submitted an offer on termination of the employment contract, the employee shall have the right to withdraw his/her offer within seven days.

If the employee has mentioned a specific term for the termination of the contract in the offer of termination of the contract, and that term is shorter than the seven-day period defined by the Article 110, the employee may withdraw his/her offer before the expiration of that term.

If the employee has submitted a request (notification) to terminate the contract upon his/her own initiative, he/she shall have the right to withdraw his/her application (notification) within three working days after the day of submitting it, in case the 30-day period of the termination of the contract has been preserved in the application (notification) (Article 112). If the employee has indicated a shorter period for termination of the employment contract in his/her application of termination of the employment contract, the indication of the shorter period shall be considered as a voluntary waiver of the right to withdraw his/her application within three days.

In any case, it should be mentioned that after the employee submits an offer or application for termination of the contract and after terminating the contract on that basis, it becomes almost impossible to prove the existence of religious discrimination and to seek effective judicial protection, so it is recommended for the employees to refrain from submitting an offer or application on terminating the contract and to resist the pressure.

Termination of the Employment Contract on the Initiative of the Employer

The grounds for termination of the employment contract on the initiative of the employer are defined by the Article 113 of the RA Labor Code.

There are cases in practice, when the employer, having a discriminatory attitude towards the employee on the ground of religion, wants to get rid of him/her by hiding the real motive - the religious discrimination.

The employer mainly uses the following grounds defined by the Article 113, 1st part, points 2, 5 and 9.

  • reduction of the number of employees and(or) staff positions due to the changes in volumes of production and(or) economic and(or) technological and(or) work organization conditions and(or) by production needs,
  • in case the employee regularly fails to fulfil the obligations reserved for him/her by the employment contract or the internal regulatory rules, with no valid reason,
  • in case the employee fails to come to work throughout the entire working day (shift) with no valid reason.

The Response of the Employee in Case of Reduction of the Number of Employees and(or) Staff Positions by the Employer

In case of termination of the contract by the employer due to reduction of the number of employees and(or) staff positions conditioned by the changes in volumes of production and(or) economic and(or) technological and(or) work organization conditions and(or) by production needs, it is possible to speak about the existence of religious discrimination when because of religion without any objective reason in case of being in equal conditions with other employees the position of the given employee is being reduced.

In case of termination of the employment contract on this ground, the employer shall be obliged to notify the employee thereon 2 months prior to the termination of the employment contract. In case the employer breaches the term of notification, the latter shall be obliged to pay the average salary of the period not notified.

In case of termination of the employment contract of the employee due to reduction of the number of employees and(or) staff positions conditioned by the changes in volumes of production and(or) economic and(or) technological and(or) work organization conditions and(or) by production needs, the employer shall also be obliged to pay a severance pay to the employee in the amount of the average salary of one month.

By the way, in this case if another job relevant to the professional skills, qualification and health state of the employee shall be available, the employer shall be obliged to offer it to the employee. The right of the employer to terminate the contract on this ground arises if the employee rejects that offer.

The response of the employee in case of dismissal from work due to regular non-fulfillment of the obligations reserved for him/her with no valid reason

In case of termination of the contract on the ground that the employee regularly fails to fulfill the obligations reserved for him/her by the employment contract or the internal regulatory rules, with no valid reason, it is possible to speak about the existence of religious discrimination, when there are sufficient factual circumstances that prove that the termination of the contract on this basis is in fact conditioned by the religious affiliation of the employee and is a result of targeting the employee on this ground by the employer.

The employer shall have the right to terminate the employment contract on this basis as application of disciplinary penalty, if before the given disciplinary violation the employee having violated the work discipline has at least two disciplinary penalties that have not been removed or cancelled (Article 121). Moreover, in this case the employer shall be obliged to follow the rules of imposing disciplinary liability, in particular:

  • The gravity of violation and consequences thereof, the guilt of the employee, the circumstances behind the violation and the work that the employee has previously performed shall be taken into consideration in case of application of a disciplinary penalty (Article 224).
  • One disciplinary penalty shall be imposed for each disciplinary violation (Article 225).
  • Prior to the application of a disciplinary penalty, the employer shall demand in writing from the employee a written explanation on the violation in a reasonable time period. If within the reasonable time period established by the employer the employee fails to submit a written explanation with no valid reason, the disciplinary penalty may be applied without the written explanation (Article 226).
  • the disciplinary penalty may be applied within one month after the violation is disclosed, not counting the periods of absence of the employee due to temporary incapacity for work, business trip or leave and the disciplinary penalty may not be applied if six months have elapsed from the day when the violation was committed. If the violation is disclosed during an auditing, financial-economic activity, a check (inventory) of sums or other values, the disciplinary penalty may be applied if not more than one year has elapsed since the day when the violation was committed (Article 227).

If the employee considers that there is a discriminatory attitude towards him/her which may lead to the termination of the contract on the initiative of the employer, it is advisable to be vigilant, to refrain from committing even slight or evident disciplinary violations, and in case of receiving a demand from the employer of submitting an explanation if such a violation has been committed, to submit a detailed explanation on the alleged disciplinary violation committed by him/her.

The disciplinary penalty may be appealed through a judicial procedure within one month after informing the employee of the legal act on the application of the given disciplinary penalty, i.e. after its entry into force (Article 228).

The response of the employee in case of dismissal from work due to failing to come to work throughout the entire working day (shift) with no valid reason

There are many cases in practice when, for example, the employer or the person directed by the employer exhorts the employee not to show up for work for a few days, allegedly to defuse the tense situation of the employee conditioned by the religious affiliation or to make a final decision on it, and based on the reason of not coming to work throughout the entire working day the employer terminates the contract.

Therefore, in order to avoid such situations, in case of an exhortation not to show up for work it is recommended for the employee either to take annual or unpaid leave or obtain a written permission to be absent from work, stating the reasons for not showing up for work.

Religion in public service

Public service relations are also special employment relations, which are regulated by separate laws. Restrictions in public service on the religious ground mainly arise in the security and law enforcement bodies of Armenia and are regulated by various legal acts.

In some spheres, the employees are directly prohibited from membership to any religious organization, and in some spheres, there is prohibition defined for using their official position for the benefit of the religious associations, propagating an attitude towards them, engaging in religious activities and conducting religious propaganda while performing official duties.

However, the prohibitions on propagating an attitude towards religious associations, engaging in religious activities, conducting religious propaganda while performing official duties are disputable both from the point of view of the principle of legal certainty, as it is very unclear which actions can be considered religious propaganda or religious activity, and in terms of contradiction with Part 1 of the Article 41 of RA Constitution (Freedom to publicly or privately express religion or belief in the form of preaching or in other forms).

Decision SDO-1506 of the Constitutional Court of RA

As a result of the strategical trial conducted with the support of the  Center for Religion and Law  Scientific-Research Non-Governmental Organization, on 18 February 2020 the RA Constitutional Court adopted the Decision number SDO-1506  On the case of conformity with the Constitution of the point 7 of part 1 of the Article 39 of RA Law  On Service in the Police  in the part of prohibition of a police officer to belong to a religious organization, on the basis of the application of RA Administrative Court .

By the mentioned Decision the Constitutional Court decided to recognized the point 7 of part 1 of the Article 39 of the Law of the Republic of Armenia  On Service in the Police  contradicting to the Article 41 and Article 45 of the Constitution and invalid, on the part of police officer’s being a member of a religious organization and defining absolute prohibition for the membership unconditioned by specific manifestations of behavior.

By the above-mentioned Decision of the Constitutional Court, for the first time it was analyzed and assessed the issue whether the absolute prohibition provided by the disputed legal regulation particularly corresponds to the grounds for restricting the expression of the freedom of religion and the freedom of associations.

The partially unconstitutional norm had such a formulation:

  1. the police officer shall have no right 7) to be a member of any party, socio-political, public organization (with the exception of a scientific, cultural, sports, hunters’, veterans’ and other similar organizations united by common interests), including a member of a religious organization, trade union; to use his/her official position for the benefit of the parties, public including religious associations, to propagate an attitude towards them, as well as to carry out other political or religious activities while performing his/her official duties.

First of all, the Constitutional Court stated that the challenged legal provision concerns not only the restriction of expression of freedom of religion, but also the restriction of freedom of associations prescribed by the Article 45 of the Constitution, as it prohibits a police officer from joining any religious organization, which is a type of association. The Constitutional Court mentioned that joining religious organizations as a form of expression of freedom of religion and at the same time as a means of exercising freedom of association does not depend on the fact of serving in any militarized institution, including the police. Consequently, only the fact of serving in the police cannot be a basis for a prohibition on joining a religious organization.

The Decision of the Constitutional Court was also based on the Decision  Trade Union of the Police in the Slovak Republic and Others v. Slovakia, app. 11828/08, Judgment 25/09/2012, § 57  adopted by the European Court of Human Rights, where the ECHR noted that the duty of the police officers of neutrality and restraint is extremely important, since in a democratic society their role is to assist the government in the exercise of its functions. Further, the ECHR expressed the position that it is legitimate to demand that police officers be impartial in expressing their standpoint, so that the public retains confidence in them (ibid. §§ 67-70).

The Constitutional Court noted that the freedom of thought, conscience and religion includes:

1) the freedom of a person to have conviction, in particular, a religious conviction, which is an absolute right guaranteed by the Constitution and is not subject to any restrictions;

2) the freedom of expression, manifestation of religious convictions, in contrast to the freedom to have such, is not absolute and may be restricted by law on the grounds prescribed in the part 2 of the Article 41 of the Constitution.

The Constitutional Court noted that in case the freedom to have religious convictions is a manifestation of the right to choose religious beliefs, as well as to freedom of expression, the freedom of expression of such convictions is manifested in the form of freedom of forming religious associations with others, joining a religious association and undertaking activities within their framework consonant with own religious convictions (preaching).

The Constitutional Court referred to the term of member of a religious organization or membership. The Court considered that the study of the Articles 5 (point  e ), 6, 7 (points  c  and  d ), 18 and 19 of the Law  On Freedom of Conscience and Religious Organizations  proves that: 1) The term  member  of a religious organization does not have institutional significance due to a certain status of a person, and therefore the content of the intra-organizational rights and obligations of a person as a member of this organization can be completely different and cannot be uniform, therefore, not the membership to any religious organization can be the basis for restricting the expression of freedom of religion, but other expression of freedom of religion, which will be incompatible with the requirement of manifestation of religious, theological neutrality in relation to others and to public authority;

2) the term  member  of a religious organization mostly pursues the goal of defining the organizational and legal type of the given organization as a religious one, and its state registration as a legal entity.

Thus, the Constitutional Court states that according to the logic of legislative regulation, the term  member of a religious organization  does not have such a legal content and meaning, which in itself would serve as a basis for qualifying the official activities of a person having religious convictions - public servant incompatible in the given sphere of public service.

The Constitutional Court also referred to the standards of restricting the freedom, mentioning that not the freedom to have convictions may be the basis for restricting (prohibiting) freedom of religion, but the freedom of expression of religious beliefs, if this restriction is conditioned by the need to protect state security, public order, health and morality, or the fundamental rights and freedoms of others. As already noted, similar restrictions are also provided for restricting the freedom of associations.

The Constitutional Court considered that in law enforcement practice, the fact of the requirement of compliance of religious and theological neutrality of a police officer or other public servant is subject to assessment in proper legal procedure from the perspective of the specific manifestation (manifestations) of the exercise of this freedom, and taking of actions by the mentioned officer aimed at expressing this freedom, which may serve as a legitimate basis for the application of measures of responsibility prescribed by law in relation to the mentioned public servant on the basis of incompatibility.

The above-mentioned Decision of the Constitutional Court has a significant impact on the status of persons having religious convictions and performing official duties, so the above-mentioned Decision of the Constitutional Court has had a serious impact on the legal field with its content.

RA Law On Service in the Police

The service in the Police System in implemented in two directions - police service and civil service in the police.

The Article 39 of the RA Law  On Service in the Police’’ defines the restrictions applied against a police officer, according to the point 7 of the part 1 of which, a police officer shall have no right to be a member of any religious organization, to use his/her official position for the benefit of the religious associations, to propagate an attitude towards them, as well as to engage in religious activity while performing official duties.

However, by the Decision № SDO-1506 as of 18.02.2020 the RA Constitutional Court has recognized the point 7 of the part 1 of the Article 39 of the Law of the Republic of Armenia  On Service in the Police  contradicting to the Article 41 and Article 45 of the Constitution and invalid, on the part of police officer’s being a member of a religious organization and defining absolute prohibition for the membership unconditioned by specific manifestations of behavior.

Article 60.18 of the RA Law  On Service in the Police  defines the restrictions applied against civil servants according to the point 4 of the part 1 of which, the civil servant shall have no right to violate the principle of the political restraint of the civil servants, i.e. to use his/her official position for the benefit of the religious associations, to propagate an attitude towards them, as well as to engage in religious activity while performing official duties.

RA Law  On Service in the National Security Bodies

There is a direct prohibition for the officers of National Security Bodies to be a member of any religious association. Particularly, according to the points 8 and 9 of the part 1 of the Article 43 of RA Law  On Service in the National Security Bodies  the officer of the National Security Bodies shall have no right to be a member of any religious organization, to use his/her official position for the benefit of the religious associations and of the propaganda in favor of the activity thereof.

The unconditional prohibition of being a member of a religious organization while serving in the National Security Bodies is highly disputable under the light of the Decision №SDO-1506 of RA Constitutional Court as of 18.02.2020.

RA Law  On the Prosecutor's Office

Тhe Article 49 of the RA Law  On the Prosecutor's Office  defines the restrictions and incompatibility requirements applied to the Prosecutor, according to the point 2 of the part 4 of which the Prosecutor shall have no right to use his/her official position for the benefit of the religious associations, to propagate an attitude towards them, as well as to engage in religious activity while performing official duties.

RA Law  On Military Service and Status of Military Serviceman, RA Law On Defense

The restrictions applied against the person in military service are defined in the Article 8 of RA Law  On Military Service and Status of Military Serviceman , according to the point 6 of the part 1 of which the military serviceman shall have no right to use his/her official position for the benefit of the religious organizations and of the propaganda in favor of the activity thereof. 

According to the point 8 of the Article 15 of RA Law  On Defense  the establishment of religious organizations in the Armed Forces and other troops, as well as religious propaganda in the territories of military units, military organizations, and military-educational institutions is prohibited. The activity of the Armenian Apostolic Holy Church in the Armed Forces is regulated by the law.

RA Law  On Community Service

According to the sub-point c) of the part 1 of the Article 24 of RA Law  On Community Service  the community servant shall have no right to use his/her official position for the benefit of the religious associations, to propagate an attitude towards them, as well as to engage in religious activity while performing official duties. 

RA Law  On Diplomatic Service

According to the sub-point 3) of the part 1 of the Article 44 of RA Law  On Diplomatic Service  the diplomat shall have no right to use his/her official position or labor resources for the benefit of the religious associations or to propagate an attitude towards them or to engage in religious activity while performing official duties. 

RA Law  On Public Service

According to the sub-point 3 of the part 1 of the Article 32 of RA Law  On Public Service  the persons holding public positions and the public employees are prohibited to use their official (service) position to ensure factual benefits or privileges for the religious associations.

When defining restrictions in the sectoral laws against the employees of some sectors, reference is made to the Article 32 of RA Law  On Public Service . Such are:

 

  1. RA Law On Penitentiary Service  (Article 32)
  2. RA Law On Compulsory Enforcement Service   (Article 30)
  3. RA Law On Rescue Service  (Article 39)
  4. RA Law On Tax Service  (Article 13)
  5. RA Law On Custom Service  (Article 25)
  6. RA Law On Civil Service  (Articles 3 and 21)
  7. RA Law On Special Investigation Service  (Article 11. The law will become void from the day the Law  On Anti-Corruption Committee  comes into force, according to Laws HO-163-N as of 03.21 and HO-147-N as of 24.03.21)
  8. the Law On Anti-Corruption Committee  (Article 23, The law will come into force within the terms defined by Article 48 of the Law)

It becomes clear from the above-mentioned that the people passing service in penitentiary, compulsory enforcement, rescue, tax, custom, special investigation, as well as civil services, the people serving in Anti-Corruption Committee are considered public employees and the restriction defined by the point 3 of the part 1 of the Article 32 of RA Law  On Public Service  are applied against them, by the force of which those people are prohibited to use their official (service) position to ensure factual benefits or privileges for the religious associations.

Means of Protection of Rights

The people whose rights have been violated on religious grounds in employment and public service relations shall be entitled to use the means of extrajudicial and judicial protection provided by the legislation to protect their rights.

Extrajudicial Means of Protection

The breach of employment and service duties on the basis of discriminatory attitude occurs mainly either through the termination of the employee's employment contract, or the deterioration of working conditions, or the imposition of disciplinary liability.

First of all, it should be noted that the processes of imposition of disciplinary liability or termination of the employment contract are concluded by an individual legal act, which is mainly challenged by judicial procedure.

Applying to the Employer

The people, who consider that their rights have been violated, submit an application to the employing organization stating the arguments on the basis of which the violation of the right may later be confirmed in judicial or extrajudicial procedure. In practice, there are cases when the employing organizations partially or completely invalidate the individual legal acts they have adopted, thus eliminating the violations of rights. In judicial practice, there are also cases when the fact that the employee submits an application or complaint to the employer (before submitting a complaint to the court) is assessed in favor of the employee; and it is very important that before the judicial dispute arises, individuals apply to the employer and submit their complaint by means of documents. It is recommended either to submit the application to the employer's office or accounting department receiving a proof on receipt of the application (for example, a note about it on one copy) or to send it by mail and keep the postal receipt.

However, the implementation of all the above-mentioned actions, as well as negotiations with the employer must be carried out in such terms that the employee does not miss the two-month period for filing a lawsuit.

Applying to the Government authorized inspectorate

According to the Article 262 of RA Labor Code, the supervision over the safety and health of the employees shall be implemented by the inspection body carrying out supervision, authorized by the Government of the Republic of Armenia to ensure the safety of work.

The supervision over the safety and health of the employees to ensure the safety of work shall be implemented by the Healthcare and Labor Inspectorate of RA, which carrying out supervision and (or) other functions prescribed by law, imposes sanctions in the manner established by law against the employers in the spheres of healthcare, workers’ health and safety, acting on behalf of the Republic of Armenia.

Thus, in cases where the employee's rights to safety or health have been violated, the person shall have the right to apply to the Healthcare and Labor Inspectorate of RA so as the latter shall initiate administrative proceedings against the employer in order to restore the violated rights.

By the Law  On Making Amendments in the Labor Code of RA  adopted on 04 December 2019 and entering into force on 01 July 2021, the Article 33 of RA Labor Code with new edition defines that the state supervision over the observance of the requirements by the employers of the labor legislation, other regulatory legal acts containing norms of labor law, collective and employment contracts shall be implemented by the authorized inspection body of the sphere (hereinafter referred to as inspection body) imposing sanctions in cases prescribed by law.

It becomes clear from the above mentioned that from 01 July 2021, the employees who consider that their regulatory legal acts containing norms of labor law have been violated, shall have the right to apply to the mentioned body to ensure the extrajudicial protection of their rights.

Applying to the Human Rights Defender

In cases prescribed by law another means of protection of labor rights is also the Human Rights Defender and the staff of the latter. But the Defender examines complaints about violations of the rights of individuals and legal entities initiated by state and local self-government bodies and officials, organizations providing public services. That is to say, in cases when the employment relationship has arisen within a private organization, which is not a public service organization, the person cannot apply to the Defender.

Thus, Part 1 of Article 15 of the Constitutional Law on the Human Rights Defender defines the cases by which a person have the right to apply to the Defender: 

The Defender in case of a complaint or upon own initiative, considers:

  • violations of human rights and freedoms enshrined in the Constitution and the laws of the Republic of Armenia by state and local self-government bodies and officials, as well as by organizations exercising the powers delegated thereto by state and local self-government bodies;
  • issues concerning violations of human rights and freedoms by organizations operating in the field of public service where there is information about mass violations of human rights or freedoms or it is of public importance or it is related to the protection of interests of persons who cannot benefit from legal remedies for protection of their rights and freedoms on their own.

The complaint addressed to the Human Rights Defender should be submitted within one year from the day when the applicant got to know or should have known about the presumable violation of the rights and freedoms thereof. The complaint is to be submitted either in written or oral form. State duty is not charged for the submitted complaints. It should be signed including the name, surname, place of residence (address) of the person submitting the complaint or the name, location of the legal entity and contact information.

There is no special form defined for the complaint. However, it is more convenient and quick to apply to the Human Rights Defender online following the link.

The Human Rights Defender makes one of the 4 decisions set forth in Article 26, part 1 of the Constitutional Law on the Human Rights Defender:

1) on the existence of a violation of human rights or freedoms, if during the discussion of the complaint a violation of human rights or freedoms by a state or local self-government body, their official or organization was discovered;

2) Absence of violation of human rights or freedoms, if during the discussion no violation of human rights or freedoms was found by the state or local self-government body or its official or organization;

3) to file a lawsuit to a state or local self-government body or its official violating human rights or freedoms, to declare normative legal acts completely or partially invalid, which contradict the law or other legal acts, if the state or local self-government body or its official does not recognize its relevant legal act in whole or in part within the period;

4) on termination of the consideration of the complaint, if during the discussion of the complaint the grounds for not considering the complaint or terminating the discussion were revealed, provided by this law.

It should be noted that a person may apply to the Defender for the latter to exercise such powers as are prescribed by law, but are of a certain discretionary nature ․ For example, with that application, the person has the right to request the Defender to apply to the Constitutional Court to find out the constitutionality of the law or to conduct an investigation on the issue, to reflect the results in the annual report, etc. However, it should be remembered that in these cases the implementation of the actions by the Defender is of a purely discretionary nature, ie the person cannot in any way demand the implementation of the mentioned actions. Examining the case law, we see that the Courts generally refuse to consider complaints against the Defender, so the means of extrajudicial protection of these rights is complementary to other means; its use depends on the specific factual circumstances of the case.

Judicial Means of Protection in Courts of General Jurisdiction or Administrative Courts

In case of violation of rights when performing the employment and service responsibilities, the person may apply to the First Instance Court of General Jurisdiction or to The Administrative Court.

It is necessary to pay attention to the nature of the case, conditioned by which the court where the person is to submit the complaint will be decided.

In particular, the Article 10 of RA Administrative Procedure Code defines the in rem jurisdiction of cases, where the following is prescribed:

  1. All the cases arising from public legal relations fall under the jurisdiction of the Administrative Court, including

1) the disputes related to starting public or alternative service, its implementation, dismissal from the service,

2) the disputes between administrative bodies that are not subject to settlement in the manner of subordination,

3) the cases of the disputes concerning the suspension or termination of the activity of associations functioning or intending to function in the field of public law, including trade unions.

  1. The Administrative Court has no jurisdiction over the cases within the jurisdiction of the Constitutional Court of the Republic of Armenia (hereinafter referred to as the Constitutional Court), the criminal cases under the jurisdiction of the Court of General Jurisdiction, as well as the cases related to the execution of a sentence.

It becomes clear from the above mentioned that the disputes related to starting public or alternative service by the employee, its implementation, service are subject to resolution in the Administrative Court. Based on the principle of exclusion, in other cases the person must submit complaint to the First Instance Court of General Jurisdiction.

The disciplinary penalty imposed by the employer may be appealed in accordance with the Article 228 of RA Labor Code within one month after receiving the legal act. And in case of disagreement with the change of employment conditions, termination of employment contract upon the employer's initiative or rescission of the employment contract, the employee shall have the right to apply to the First Instance Court of General Jurisdiction within two months after receiving the corresponding legal act in accordance with the Article 265 of RA Labor Code.

The protection of labor rights violated as a result of discrimination on religious ground may be carried out in judicial procedure mainly by the following means: either by establishing the fact of employment relation, or by recognizing the individual legal act of the employer invalid.

Proceedings to Prove the Fact of Employment in Court

In Armenia, the labor relations sometimes arise in a manner not prescribed by law, in particular, the work is carried out and the salary is paid without the execution of legal documents. In such cases when there is no order on hiring an employee or an employment contract signed between the parties, we deal with illegal employment. 

However, in the above mentioned case real risks arise for the employee, which refer to not benefiting from the guarantees prescribed by the Labor Code. Particularly, in this case the employee is more vulnerable in matters related to the payment of the salary, vacation, working hours and rest. In many cases, the problem arises when the employee is being fired.

According to the Article 102 of RA Labor Code 1. Illegal is considered to be the job which is done without a written employment contract concluded as prescribed by the labor legislation or without an individual legal act on hiring.

  1. Voluntary work and the work performed for the purpose of provision of assistance may not be deemed as illegal. The procedure and conditions for performing such works shall be prescribed by law.
  2. The employers or their representatives who have given permission and(or) induced to perform illegal work shall bear liability in the manner prescribed by the legislation of the Republic of Armenia, as well as reimburse the employees performing such work for the damages incurred during the performance of that work not by the fault of the employee. If it is established through judicial procedure that there are (have been) actual employment relations between the employee and the employer, then the employment relations shall be deemed as having arisen on the day the employee was actually hired. To establish the fact of the existence of employment relations, the employee shall have the right to apply to court within the period of actual employment relations, as well as within one year after the termination of actual employment relations. The establishment of the fact of the existence of actual employment relations between the employer and the employee by the legitimate decree of the court shall not exempt the employer from the liability prescribed by law.

Based on the above mentioned, it becomes clear that the person who has performed illegal work shall have the right to apply to the court to establish the fact of the existence of employment relations. However, it should be taken into account that the employee shall bear the liability for proving of the case, so the collection and presentation of such evidence is crucial for the success of the case. Studying the judicial practice, it becomes clear that for the case of establishment of the fact of employment relation evidences can be

  1. the documents of state bodies, including the inspection or administrative acts of the tax authority,
  2. the evidence on performing actual work,
  3. the information available on social networks,
  4. the evidence received from the customers of the employing organization, etc.

The Procedure for Submitting a Complaint to the First Instance Court of General Jurisdiction

When filing a complaint, the requirements must be complied with, in particular, according to the Article 121 of the Civil Procedure Code, the complaint must indicate the name of the court to which the complaint is submitted, the name of the plaintiff, the address of the place of registration (location), the notification address (if different from the address of the place of registration (location)), including the data of the identification document (hereinafter referred to as passport data) of the citizen who is the plaintiff, the state registration number of the legal entity which is the plaintiff, the name of the representative thereof, the passport data, the notification address, and if the claim was filed by the official entitled to do it, then the name and position of that person as well, the name of the respondent,  the address of the place of registration (location), in case of not having a place of registration the address of residence, the name of other persons participating in the case, the address of the place of registration (location) thereof, in case of not having a place of registration the address of residence, the facts on which the claims are based, in case of property compensation the amount claimed or disputed and the calculation, the material and legal claim (claims) addressed to the respondent, the list of the documents and evidence attached to the complaint.

The complaint may also include the legal norms applicable to the disputable legal relationship, the evidence verifying each of the facts the claim is based on, with an appropriate note indicating which evidence is addressed to the verification of which fact, the motions of the plaintiff, and other information significant for the examination and solving of the case, the information on the means of electronic communication with the motion of noticing through that means.

The complaint shall be signed by the plaintiff or the representative thereof. The complaint signed by the representative shall be accompanied by a document certifying the powers thereof and a copy of the identification document. The copy of the identification document of the plaintiff, the original receipt certifying the payment of state duty in the form and amount established by law or the relevant code certifying the transfer to the corresponding treasury account provided by the payment organization, the copy of the complaint and the evidence verifying the sending of the copies of the documents attached thereto to the persons participating in the case, unless a motion is filed to secure the claim, shall also be attached to the complaint. In case of motion to secure the claim, the copy of the complaint and the enclosed documents are attached.

If the evidence attached to the complaint is voluminous, then the evidence proving that the complaint was sent to the persons participating in the case is attached to the complaint.

The court has the right to return the complaint not complying with the form and content of the complaint in accordance with the procedure prescribed by the Article 127 of the Civil Procedure Code. The plaintiff shall have the right to correct the errors within three days and to submit the complaint to the court again.

The Procedure for Submitting an apeal to the Civil Court of Appeal

In case of a negative judicial act of the Court of General Jurisdiction of the First Instance, the person may submit an appeal against that judicial act to the Civil Court of Appeal within one month. The appeal must indicate the name of the Court of Appeal, the names and addresses of the person who brings the appeal and persons participating in the case, the name of the court the judicial act of which is appealed, the case number and the year, month and day of the adoption of the judicial act, the bases of the appeal, i.e. the violations of the norms of substantive or procedural right, which may affect the outcome of the case, the substantiations of the appeal, i.e. the substantiations on the violations of the norms of substantive or procedural right indicated in the appeal as well as the effect thereof on the outcome of the case, the claim of the appealing person, the list of the documents attached to the appeal.

The Procedure for Submitting a Cassation appeal to the Court of Cassation

In case of a negative judicial act of the Court of Appeal, the person may appeal the judicial act in the Court of Cassation within one month. The appeal submitted to the Court of Cassation must indicate the name of the Court of Cassation, the names and addresses of the person who brings the appeal and persons participating in the case, the name of the court the judicial act of which is appealed, the case number and the date of the adoption of the judicial act, the bases of the cassation appeal, i.e. the violations of the norms of substantive or procedural right, which have affected or could affect the outcome of the case, the substantiations of the cassation appeal, i.e. the substantiations on the violations of the norms of substantive or procedural right indicated in the cassation appeal as well as the effect thereof on the outcome of the case, the basis for accepting the cassation appeal for proceeding and the substantiation thereof, the demand of the appealing person, the list of the documents attached to the appeal.

Protection of labor rights in RA Administrative Court

In cases when labor rights are violated in the relations related to starting public or alternative service, its implementation, dismissal from the service, the claim shall be submitted to the RA Administrative Court with a claim of dispute prescribed by the Article 66 of the RA Administrative Procedure Code, demanding to cancel the act based on which the person's rights have been violated. The employer shall also have the right to include in the conclusion of the complaint a derivative claim on elimination of the consequences, for example claims of payment for the mandatory idleness, making final settlement, etc.

The complaint shall be submitted during the term prescribed by the Article 72 of the RA Administrative Procedure Code, in case of a claim of specific dispute - in two-month period from the moment the administrative act enters into force.

The following shall be mentioned in the complaint submitted to the Administrative Court:

1) a note that the complaint is submitted to the Administrative Court,

2) the name of the plaintiff, the place of residence (location), the notification address (if different from the place of residence), including the personal data of the plaintiff which is a physical person,

3) the name of the respondent, the location, and in cases when the physical or legal entity acts as a respondent in the procedure prescribed by this Code, then the name, the place of residence (location) of the latter,

4) a brief description of the essence of the claim,

5) the facts on which the plaintiff's claim is based,

6) the arguments substantiating the claim of the plaintiff,

7) the claim of the plaintiff,

8) information on appealing the administrative act, the action or inaction of the administrative body in the manner of subordination,

9) the list of written evidence, if any are attached to the claim,

10) the year, month and day of submission of the complaint.

 

The documents defined in the Article 74 of the Administrative Procedure Code shall be attached to the submitted complaint.

1) The original receipt certifying the payment of state duty in the form and amount established by law or the relevant code certifying the transfer of state duty to the corresponding treasury account provided by the payment organization, and if the law provides for the possibility of partial payment of the state duty or postponement of payment or installment payment, then the relevant motion on this shall be attached to the complaint.

2) a power of attorney or other document, certifying the powers of the representative (if the participants in the trial act through representatives),

3) a motion to invite a witness or expert, to appoint an expertise,

4) the written evidence in the possession thereof, if it is possible to attach them to the complaint,

5) the challenged act or a copy thereof, if it is possible to submit it,

6) the evidence proving the sending of the copies of the complaint and the attached documents (if they can be copied) to the respondent and third parties.

State duty privileges

Аccording to subpoint a/ of the Article 22 of the RA Law On State Duty , a) the plaintiffs with regard to claims for charging of salary and other sums relating to payments equalized thereto and on other labor disputes, shall be released from payment of state duty at courts.

So the employees with regard to claims for charging of salary and other sums relating to payments equalized thereto and on other labor disputes, are released from payment of state duty at courts.