STEFANOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Inadmissible
Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
The applicant, Mr Slobodan Stefanovski, is a Macedonian national who was born in 1969 and lives in Gevgelija. He is represented before the Court by Mr D. Ajcev, a lawyer practising in Gevgelija. The applicant worked as a warden in company N. (“the employer”) until 30 July 1998 when he was dismissed. On 8 April 1999 the applicant challenged his dismissal before the Gevgelija Court of First Instance (“the first-instance court”). On 29 September 2000 the first-instance court accepted the applicant’s action, annulled the dismissal decision and ordered his reinstatement. It established that the dismissal decision had not reached the applicant although posted by the employer. It was only on 15 March 1999 that the applicant received this decision by the Employment Bureau (Биро за вработување). The employer’s managing board (“the board”), by a decision of 19 March 1999, rejected the applicant’s objection of 18 March 1999 as out of time. The same day, the employer communicated to the applicant a copy of the dismissal and board’s decisions. It further invited the applicant to the board’s meeting listed for 6 April 1999 to discuss the applicant’s objection of 18 March 1999. This meeting was not held. On 24 March 1999 the applicant lodged a fresh objection which remained undecided. The court found that the applicant had not violated the rules on working discipline. It further dismissed the employer’s arguments that the applicant’s claim had not been filed in good time. In this connection, it held that the board had accepted jurisdiction to decide on the applicant’s objection of 18 March 1999 and rejected it the next day. The first-instance court held that the employer had failed to prove that the applicant had received the board’s decision on 20 March 1999. The court therefore accepted the applicant’s claim as having been submitted within the statutory time-limit, namely fifteen days following his second objection of 24 March 1999. The employer appealed, inter alia, that the first-instance court had wrongly considered the applicant’s claim as having been submitted in good time. It provided in support a copy of a Post Office receipt list attesting that the applicant had received a letter from the employer on 20 March 1999 which included the dismissal decision and the board’s decision. It also argued that the dismissal decision should be considered together with the board’s decision. On 7 March 2001 the Skopje Court of Appeal accepted the employer’s appeal and remitted the case for fresh consideration. It agreed that the employer’s decisions should be considered together and instructed the lower court to order the applicant to specify his claim in that respect. It further found insufficient evidence as regards the alleged breach of working discipline. As to the complaints that the applicant’s claim was out of time, the Court stated that: “... this court accepts the reasoning of the first-instance court that the applicant’s claim was submitted within the statutory time-limit calculated as of the day of submission of the applicant’s objection in respect of the dismissal decision. In this context the Post Office receipt list does not alter this finding since it is impossible to determine the contents of that letter. This evidence does not substantiate the allegation that the applicant submitted his claim out of time ...” On 25 March 2002 the first-instance court accepted the applicant’s claim and annulled the dismissal decision of 30 July 1998 and the board’s decision of 19 March 1999. It found, inter alia, that the board had not decided the merits of the applicant’s objection of 18 March 1999 although it should have done so by 3 April 1999. Neither did the board decide on the applicant’s objection of 24 March 1999. The court concluded accordingly that the applicant’s action had been submitted within the fifteen-day time-limit. On 15 January 2003 the Skopje Court of Appeal accepted the employer’s appeal and overturned the lower court’s decision declaring the applicant’s action as being out of time. It found that: “... on 19 March 1999 the employer’s second-instance commission decided on the applicant’s objection of 18 March 1999. On the same day, this decision was communicated to the plaintiff (the applicant) so ... the plaintiff could seek protection of his rights before a competent court within fifteen days of the final decision of the party sued, namely ... the second-instance decision.” In an appeal on points of law, the applicant complained, inter alia, that the first- and second-instance courts, by their decisions of 29 September 2000 and 7 March 2001 respectively, had already accepted his action as having been submitted in good time. On 4 December 2003 the Supreme Court dismissed the applicant’s appeal. It stated, inter alia, that: “ ... According to the second-instance court, it is not in doubt that on 18 March 1999 (the applicant) lodged an objection in respect of the dismissal decision of 30 July 1998. (The employer’s) second-instance body decided on 19 March 1999. The same day, the second-instance decision was submitted to (the applicant) who could claim court protection of his rights within fifteen days of (the employer’s) final decision. The first-instance court accepted that (the applicant) ... objected to the dismissal decision. (The employer’s) second-instance body decided straight away ... The time-limit for challenging a dismissal decision cannot restart because the latter has been served again, but now - by (the employer) ...”