CASE OF TROFIMCHUK v. UKRAINE
Remainder inadmissible;No violation of Art. 11
Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste
4. The applicant was born in 1944 and lives in Rivne. 5. In 1980 the applicant began working as a boiler engine operator at Rivneteplokomunenergo, a municipal enterprise responsible for maintaining central heating in Rivne. In December 1998 a number of employees of Rivneteplokomunenergo, including the applicant, were transferred to Komunenergiya, a new municipal heating provider founded by the Rivne Town Administration. Subsequently, Rivneteplokomunenergo ceased its activities, was declared bankrupt and liquidated. 6. Before March 1999 the applicant's work performance was generally positive. On 12 February 1999 she successfully passed tests on work safety when operating boilers. 7. According to the applicant, she and many of her colleagues had not received the salary due to them for the period of August-December 1998 during which they had worked at Rivneteplokomunenergo. In February 1999 a number of the Komunenergiya employees met to discuss possible solutions to that problem. They agreed to form a trade union at Komunenergiya and to organise a picket. Subsequently, the applicant discontinued her membership of a trade union which had existed at Komunenergiya since 1998 and informed the management of the company that a new trade union had been established by thirty-four employees of Komunenergiya. 8. According to the Government, the employees of Komunenergiya did not form a new trade union. 9. On 22 February 1999 the applicant and two other persons, allegedly acting on behalf of the Komunenergiya staff, gave a written notice to the Mayor of Rivne which read as follows: “We, employees of Komunenergiya, inform you that at 7.30 a.m. on 3 March 1999 [we] will picket the management of Komunenergiya, which is located at ... [for the reason of] non-payment of salary from August 1998 to February 1999.” 10. On an unspecified date the Rivne Town Administration included the information about the picket in its register. 11. On 27 February 1999 an inspection party comprising several colleagues of the applicant, including her direct supervisor and the deputy director of Komunenergiya, visited various boiler rooms, one of which the applicant worked in, in order to check compliance with safety instructions. In relation to the applicant's room, the inspectors noted that certain pieces of the boiler equipment were broken or otherwise not functioning, that such malfunctioning had not been recorded in a special log kept by boiler operators, that certain parts of boiler equipment were not in place, and that there were unauthorised objects on the boiler and in the room. They concluded that the applicant did not comply with the relevant safety instructions. On those grounds, the management issued a reprimand to the applicant on 2 March 1999. 12. On 3 March 1999 the applicant and some seventy other persons took part in a picket in front of Komunenergiya's main office. They expressed concerns that the management of Komunenergiya did not ensure timely payment of salaries and that the director had misappropriated company funds. 13. On that day, the applicant was required to be at work at 8 a.m. but came to work at 10 a.m. The applicant's direct supervisor drew up a report concerning the applicant's two hour absence from work, noting that because of her absence the applicant's colleague had had to work for two more hours after the latter's night shift. 14. On 9 March 1999 Komunenergiya lodged a claim against the applicant and K. with the Rivne Court, asking the court to rule that the picket on 3 March 1999, which the company termed a strike, had been unlawful. Komunenergiya submitted that the strike had lasted for three hours, that about seventy persons had taken part in it, and that only three persons, including the applicant, had informed it of their participation in the strike by way of a written notice dated 22 February 1999. It alleged that the persons taking part in the strike had not been authorised to represent the interests of staff and that the demands of the strikers had not been approved by the staff or provided to the management in advance. A copy of the notice of 22 February 1999 was joined to the claim. 15. The parties did not provide information concerning the outcome of Komunenergiya's claim. 16. On 10 March 1999 the applicant was dismissed from work for systematic breach of her duties of employment (Article 40 § 3 of the Labour Code). 17. On 29 March 1999 the applicant instituted proceedings in the Rivne Court seeking reinstatement in her position at Komunenergiya and recovery of salary arrears. She argued that her dismissal had been unlawful and unfounded, and that the real reason for it had been the labour dispute between Komunenergiya's management and staff concerning non-payment of salary arrears. 18. In the course of the court hearings concerning her case, the applicant stated that she had not been responsible for the issues discovered at her workplace on 27 February 1999, that she had been absent from work on 3 March 1999 because she had participated in the picket, of which the local authorities had been duly informed, and that prior to the picket she had arranged with her colleague O. that he would replace her on that day. The applicant acknowledged that she had not informed her direct supervisor of her absence in advance. 19. The representatives of Komunenergiya denied that there had been a dispute between the applicant and the company's management and reiterated that the applicant had been dismissed for systematic breach of her duties of employment, in particular because of her failure to ensure the safe working conditions in the boiler room on 27 February 1999 and because of her unauthorised absence from work on 3 March 1999. 20. On 21 June 2000 the court rejected the applicant's claim, finding that she had committed serious violations of work regulations during the short period of time she had worked at Komunenergiya. In particular, it noted that, according to the statements of the applicant's colleagues obtained during the court hearings and the documents submitted by Komunenergiya, the applicant had been responsible for the safety-related issues discovered on 27 February 1999 and that she had been absent from work for two hours on 3 March 1999 without informing management and her direct supervisor in advance. On these grounds, the court concluded that the applicant had been lawfully dismissed pursuant to Article 40 § 3 of the Labour Code. 21. The court also held that the applicant's submissions concerning a labour dispute between the management and staff were unsubstantiated, as Komunenergiya was not responsible for the non-payment of salary arrears due to the applicant for the period before she left Rivneteplokomunenergo in December 1998. 22. The applicant appealed against the judgment of the first-instance court and contested its findings of fact. She also stated that the management had been informed in advance of her participation in the picket on 3 March 1999, as on 22 February 1999 she had submitted a written notice to the local authorities. 23. On 11 September 2000 the Rivne Regional Court quashed the judgment of 21 June 2000 and remitted the case for fresh consideration. The Regional Court disagreed that the applicant's case concerned systematic breaches of her employment duties. 24. On 10 July 2001 the Rivne Court dismissed the applicant's claim on the same grounds as those given in its judgment of 21 June2000. 25. By decisions of 3 January and 13 August 2002, the Rivne Court of Appeal and the Supreme Court of Ukraine, respectively, dismissed the applicant's appeals as unsubstantiated and upheld the findings of the firstinstance court. 26. In its decision of 3 January 2002, the Rivne Court of Appeal noted that the applicant's allegation that she had been dismissed as a result of her participation in the picket on 3 March 1999 was unsubstantiated. 27. The relevant provisions of the Constitution read as follows: “Employees have the right to strike in order to protect their economic and social interests. The procedure for exercising the right to strike shall be established by law, taking into account the need to ensure national security, the protection of health, and the rights and freedoms of other persons. No one shall be forced to participate or to not participate in a strike. A strike may only be prohibited on the basis of law.” 28. The relevant extracts from the Labour Code read as follows: “A labour contract of indefinite duration ... may be discontinued by [an employer] in the following cases: ... (3) systematic and unjustified failure by an employee to fulfil his duties under the labour contract or staff regulations, if there were earlier disciplinary or public sanctions imposed on him ...” “If no new disciplinary sanction is imposed on an employee within a year of the imposition of a [previous] disciplinary sanction, he is considered to have not been subjected to a disciplinary sanction ...” 29. The relevant extracts from the Act read as follows: “Parties to a collective labour dispute are: at an occupational level – employees (certain categories of employees) ... or a trade union, or another organisation authorised by employees [to represent their interests] and the owner of an enterprise ... or [the employer's] representative. ... A body authorised by employees to represent [their interests] shall be the only authorised representative of employees during the time such a dispute exists.” “A strike is a temporary, collective and voluntary cessation of work by employees (non-appearance at work, breach of labour duties) ... with the aim of resolution of a collective labour dispute. Striking shall be an extreme means of resolution of a collective labour dispute (when all other possibilities [of such resolution] have been exhausted) if [the employer] refuses to allow the claims of employees or of a body authorised by them, or of a trade union, or of an association of trade unions or of a body authorised by them.” “Pursuant to Article 44 of the Constitution of Ukraine employees have the right to strike in order to protect their economic and social interests. The procedure for exercising the right to strike is established by this Act. A strike may be commenced if conciliatory procedures have not led to the settlement of a collective labour dispute or if [the employer] avoids conciliatory procedures or does not comply with an agreement reached in the course of the resolution of a collective labour dispute.” “A decision to announce a strike at an enterprise shall be taken by the majority of employees at a general assembly (conference) of employees or by two-thirds of delegates to the conference ... upon a request of a trade union or another association of employees, authorised, in accordance with section 3 of this Act, to represent the interests of employees. Minutes must be drawn up reflecting such a decision. ... No one shall be forced to participate or to not participate in a strike. A body (person) leading a strike shall inform [the employer] no later than seven days before the commencement of a strike, or no later than fifteen days if the decision to strike concerns a non-stop work process. The owner or his representative shall inform, as soon as possible, suppliers, consumers, transport organisations, and other interested enterprises ... about the employees' decision to announce a strike. A body (person) leading a strike shall determine [the place of the strike] in agreement with the owner or his representative. If an assembly, meeting, or a picket takes place outside the enterprise, the body (person) leading the strike shall inform the local authority no later than three days before it takes place.” “An application by [the employer] seeking to have a strike declared unlawful shall be considered by a court. [It] must be considered by a court ... within seven days. A court's judgment declaring a strike unlawful obliges persons taking part in the strike to adopt a decision discontinuing or cancelling the announced strike, and [it obliges] employees [to return to work] no later than the next day after the body (person) leading the strike is served with a copy of the court's judgment. “Employees' participation in a strike, with the exception of strikes declared unlawful by a court, shall not be considered as a violation of work discipline and may not serve as a ground for disciplinary action...” “Organisation of, or participation in, a strike declared unlawful by a court shall constitute a violation of work discipline. Employees shall not be remunerated for the time during which they take part in a strike. The time during which an employee takes part in a strike declared unlawful by a court shall not be included in the [period of his] general and uninterrupted length of service.” 30. The relevant extracts from the Resolution of the Plenary Supreme Court read as follows: “23. An employee may be dismissed pursuant to Article 40 § 3 [of the Labour Code] for an offence committed at work only after disciplinary or public sanctions for unjustified breach of his duties under the labour contract or staff regulations have been imposed on him. In such cases, only the disciplinary sanctions which are envisaged by law and are still in force ... (Article 151 [of the Labour Code]) shall be taken into account...”