KOVAČEVIĆ v. CROATIA
Inadmissible
Dmitry Dedov;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković
1. The applicant, Mr Alen Kovačević, is a Croatian national, who was born in 1968 and lives in Zagreb. He was represented before the Court by Mr I. Žurić, a lawyer practising in Zagreb. 2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 1 April 2008 the applicant was employed as a salesman (manager for key buyers) in company I. (hereinafter: the “company”) on an indefinite contract. The contract of employment conditioned his confirmation in the post by a successful three-month probationary period. 5. By the company’s decision of 15 May 2008 the applicant’s employment was terminated on the grounds that he had failed to satisfy the requirements of the post. He was given seven days’ notice. 6. The applicant objected to the decision terminating his employment arguing, inter alia, that it was incorrect that he had failed to satisfy the requirements of the post and that the real reason for the cancellation of the employment contract had been the overall financial austerity within the company. 7. The company maintained its position reiterating the reasons for its decision to terminate the applicant’s employment. 8. On 26 June 2008 the applicant lodged a civil action in the Zagreb Municipal Civil Court (Općinski građanski sud u Zagrebu) challenging the company’s decision. He argued that he had duly complied with all relevant requirements of the post and that the real reason for the cancellation of his employment contract had been the overall financial austerity within the company. Accordingly, he contended that since the reason for the cancellation of his employment contract had not been the one cited by the company, namely his inadequate professional performance, but the economic reasons related to the company’s business performance, the termination of his employment had been unlawful. The applicant requested that the relevant documents concerning his employment contract be admitted into evidence and that two witnesses, H.B. and I.U., be questioned in court. 9. During the proceedings the Zagreb Municipal Civil Court questioned several witnesses, including H.B. and I.U., and examined the relevant documents submitted by the parties. Throughout the proceedings the applicant was represented by a lawyer who actively participated in the questioning of witnesses and examination of evidence at the trial. 10. On 6 November 2009 the Zagreb Municipal Civil Court dismissed the applicant’s civil action. It set out the scope of the case before it in the following manner: “The cancellation of an employment contract conditioned by a probationary period should be assessed under the legal provisions concerning regular or extraordinary [dismissal], that is to say, in the concrete case, under section 106 § 1(2) of the Labour Act. This provision provides that an employer can cancel the employment contract in case of a justified reason. Under section 112 § 1 of the Labour Act the burden of proof of the existence of a justified reason is on the employer. ... In these circumstances the defendant is required, under section 112 in conjunction with section 106 §(2) of the Labour Act, to prove the existence of the justified reason for a dismissal related to the [worker’s] personal circumstances, that is to say [to prove] that the plaintiff failed to satisfy the requirements of the post of a manager for key buyers. The objection of the plaintiff that his dismissal was based on some other reasons, namely economic, is irrelevant since the plaintiff is not in a position to demonstrate the existence of reasons which were not cited as the reasons for dismissal. This court therefore dismissed the plaintiff’s request for obtaining of the information from the [Croatian Social Insurance Fund] about the number of workers in the [company] in the period between April and July 2008, as well as the information from the [competent tax authority] concerning the financial reports about the defendant’s business performance in 2007 and 2008, as well as the information about the workers who were dismissed [from the company] in that period. This is because this court finds such information irrelevant given that the grounds for dismissal were not the economic reasons. It is not for the plaintiff to demonstrate [the existence of these reasons] but the burden of proof is on the defendant who is required to show the existence of the reasons cited in its decision on dismissal as that is the subject matter of this dispute.” 11. The Zagreb Municipal Civil Court further found that it followed from the statements of several witnesses and the relevant evidence adduced during the proceedings that the applicant had failed to meet the requirements of the post and that therefore his dismissal by the company had been justified and lawful. The Zagreb Municipal Civil Court in particular stressed: “In the case at issue the dismissal was based on the grounds that “the worker failed to meet the requirements of the post”; that is therefore a dismissal related to the worker’s personal circumstances. ... The court’s assessment whether the justified reasons for such a dismissal existed is based on the assumption that the communication skills, teamwork and personal initiative are the relevant characteristics and skills for the position of a manager for key buyers, and the plaintiff failed to demonstrate those characteristics and skills. As already stated above, the purpose of the probationary period is to allow the employer to verify the working skills of the worker, and the worker thereby assumes a certain risk which he or she must be aware of when concluding such a contract of employment. It should be also noted that the employer independently decides which characteristics and skills of a worker are relevant for a particular post, that is to say which are the characteristics and skills that [the employer] requires, given that [the employer] is independent in organising and managing its business. In these circumstances, and in view of the evidence adduced during the proceedings, this court finds that the plaintiff was given an opportunity to demonstrate his skills, given that he was invited to the meetings, he had free access to everything and everybody in the company and essentially free space to demonstrate his skills. However, he failed to show that he possessed the required characteristics and skills, which this court found established from the cited witness statements.” 12. The applicant appealed to the Zagreb County Court (Županijski sud u Zagrebu) arguing, inter alia, that, given the scope of the case set out by the Zagreb Municipal Civil Court, he had not been given an opportunity to challenge the real reasons for his dismissal which had been, in his view, related to the company’s business performance. 13. On 13 April 2010 the Zagreb County Court dismissed the applicant’s appeal as ill-founded. With regard to the applicant’s specific arguments, and in view of the evidence adduced during the proceedings before the first-instance court, the Zagreb County Court noted: “In view of these findings, the first-instance court correctly examined the lawfulness of the impugned decision [on dismissal] under section 106 § 1(2) of the Labour Act. In such a case, under section 112 of the same Act, the burden of proof for the justification of the decision [on dismissal] is on the defendant. The plaintiff argued that the reasons for the dismissal were false and fabricated and that the real reasons for the termination of his employment contract had been of the economic nature, whereas he had professionally, diligently and correctly performed the assignments of his post. ... Given the [relevant] factual findings, it undoubtedly follows that the reasons for the impugned dismissal are truthful and justified and that the objection of the plaintiff that these reasons are not real is unsupported by evidence and unfounded.” 14. The applicant further lodged an appeal on points of law with the Supreme Court (Vrhovni sud Republike Hrvatske) reiterating his previous arguments that he had not been able to demonstrate the real reasons for his dismissal. 15. On 18 September 2012 the Supreme Court dismissed the applicant’s appeal on points of law as ill-founded, upholding the decisions of the lower courts. 16. The applicant then lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) reiterating his arguments adduced before the lower courts. 17. On 28 February 2013 the Constitutional Court declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded. The decision of the Constitutional Court was served on the applicant’s representative on 14 March 2013. 18. The relevant provision of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998 (consolidated text), 113/2000, 124/2000 (consolidated text), 28/2001 and 41/2001 (consolidated text), 55/2001 (corrigendum), 76/2010, 85/2010 and 05/2014) reads: “In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.” 19. At the material time the relevant part of the Labour Act (Zakon o radu, Official Gazette no. 137/2004 – consolidated text; providing for an amended enumeration of sections under the original text of the Labour Act, Official Gazette no. 38/1995, which are noted below in the brackets) provided: “(1) At the moment of the conclusion of an employment contract a probationary period of work may be stipulated. (2) The probationary period of work under paragraph 1 of this section shall not be longer than six months. (3) If the probationary period of work has been stipulated, the notice period is at least seven days.” “The employer and the worker may cancel the employment contract.” “(1) The employer may cancel the employment contract, observing the prescribed or stipulated notice period (regular cancellation of an employment contract) if he or she has justified reason in the case: - there is no longer need for a particular work due to economic, technical or organisational reasons (professionally conditioned dismissal); - if the worker is unable to duly perform the assignments of his or her post due to certain permanent characteristics or skills (personally conditioned dismissal); - if the worker breaches his or her work assignments (dismissal conditioned by a wrongful conduct of the worker). ...” “(1) A dismissal must be in a written form. (2) The employer must provide reasons for the dismissal in a written form. (3) The [decision on] dismissal must be served on the dismissed person. (4) The notice period starts running from the moment of the service of the [decision on] dismissal. ...” “(1) If the employer cancels the employment contract, and this Act requires the existence of a justified reason, he or she must prove the existence of the justified reason for dismissal. ...” 20. The relevant part of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette no. 148/2011 – consolidated text) provides: “(1) In the proceedings concerning the employment disputes, in particular with regard to the scheduling of hearings, the court shall always bear in mind the necessity of expeditious resolution of the employment disputes. ...” 21. In the judgment no. Revr-190/07-2 of 18 April 2007, concerning extraordinary cancellation of an employment contract, with regard to the scope of the case in the employment disputes the Supreme Court noted: “Under section 119 (section 112 [in the enumeration of the original text]) of the Labour Act the burden of proof concerning the existence of the justified reason for dismissal is on the employer. The court determines the operative facts of the case within the scope of the reasons cited for the dismissal.” 22. In the judgment no. Revr-835/10-2 of 9 June 2010, concerning the cancellation of an employment contract during the probationary period, the Supreme Court held the following: “Under section 106 § 1 (section 113 § 1 of the consolidated text of the Labour Act) the employer may cancel the employment contract observing the prescribed or stipulated notice period (regular cancellation of an employment contract) if he or she has justified reason for that. Accordingly, by relying on the cited provision, and given that the plaintiff and the defendant had concluded an employment contract under the probationary period, the plaintiff was allowed to cancel the plaintiff’s employment contract if it had justified reason for the dismissal. This court accepts the conclusion of the lower courts according to which the defendant, upon whom the burden of proof rested under section 112 of the Labour Act, that is to say section 119 § 1 of the consolidated text of the Labour Act, proved during the proceedings that it had had a justified reason for the dismissal (section 106 § 1 of the Labour Act) given that the plaintiff had failed to meet the requirements of the post during her probationary period.”