On October 27, 2021, in the court of general jurisdiction of the Shirak region of the Republic of Armenia, a court hearing was held on the claim of Karlen Ghazaryan against the Institute of Geophysics and Engineering Seismology of the National Academy of Sciences of the Republic of Armenia on invalidating the orders to dismiss the director from work and bring to disciplinary responsibility, to reinstate him at his previous position and collection of average wages for the entire period of forced downtime.
The court session was attended by representatives of the plaintiff and the defendant.
Since the case was at the stage of trial, the court clarified the position of the parties to the dispute.
The plaintiff insisted on the claim filed at the preliminary court session, and also asked the court to recover from the defendant the costs of the lawyer’s fee in the amount of 200 thousand drams (about 360 euros) in favor of the plaintiff.
The defendant fully objected to the claim. For the representative of the defendant, it was incomprehensible to the plaintiff’s demand to “recover the average wage for the entire period of forced downtime”, although the plaintiff continues to work in this institution (but not as a director).
According to part 1 of Article 265 of the RA Labor Code, in case of disagreement with the change in working conditions, termination of the employment contract or termination of the employment contract on the initiative of the employer, the employee has the right to apply to the court within two months from the date of receipt of the relevant order (document). If it turns out that the working conditions have been changed, the employment contract with the employee is terminated without legal grounds or in violation of the procedure established by law, the violated rights of the employee can be restored. In this case, the average wage for the entire period of forced downtime or the difference in wages for the period during which the employee performed low-paid work is charged from the employer in favor of the employee.
One of the goals of the right to work is to receive remuneration. This goal is enshrined in article 6 of the International Covenant on Economic, Social and Cultural Rights, which, inter alia, states that the right to work includes the right of everyone to earn a living in the work of his choice. This means that a person’s personal interest in returning to their previous job has economic and financial value, which in this case is a sufficient basis for protecting the right to work under Article 1 (protection of property) of the Additional Protocol of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Since the salary is considered property, and in this context, the expectation of receiving the desired salary is justified by this article. Moreover, according to the ECtHR case-law in “Trgo v. Croatia” (judgment of June 11, 2009, para. 44), within the meaning of this Convention, property is not only an existing tangible asset, but also a legitimate expectation of acquiring that tangible asset. Proceeding from this, if the dismissal of K. Ghazaryan is recognized as illegal, he will have legal grounds to expect that he will continue to receive compensation for his work. If it is impossible to restore the illegally dismissed person, that is, if it is impossible to restore the situation that existed before the commission of the offense, effective legal protection of the violated right can be carried out by paying him compensation. This idea is enshrined in the ECtHR judgment “Vasilescu v. Romania” (May 22, 1998, paragraph 61), as well as in Article 10 of ILO Convention No. 158.
The defendant objected to the claim and the payment of the lawyer’s fee, considering the plaintiff’s expenses excessive.
According to part 4 of Article 107 of the RA Labor Code, when determining the amount of reimbursement of expenses for a reasonable remuneration of a lawyer, the court takes as a basis a reasonable amount of expenses, which is determined based on the volume of work performed by the lawyer, the complexity of the case, the average price list of payments for advocacy established by the Council of the Chamber of Lawyers of the Republic of Armenia, as well as the ratio of the size of the amount to be collected under a judicial act and the requested attorney’s fee.
The Council of the Chamber of Lawyers of the Republic of Armenia by its decision N 33/3-L of December 26, 2013 established an average price list of payments for advocacy related to the reimbursement of legal costs by the courts. This decision of the Chamber will serve as the basis for the court decision in the case of K. Ghazaryan.
The court explained to the parties the possibility of settling the dispute through conciliation. The plaintiff rejected this possibility, and the defendant recorded the fact of the statement made at the preliminary hearing with the plaintiff, which the latter rejected.
The court proceeded to examine the evidence.
After examining the evidence, the court announced that the decision would be published on November 9, 2021.