DAVITASHVILI v. GEORGIA
Inadmissible
András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
The applicant, Mrs Natela Davitashvili, is a Georgian national who was born in 1947 and lives in Tbilisi. The respondent Government were represented by their Agent, Mr Mikheil Kekenadze of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant had worked, under a contract of indefinite duration, as a laboratory assistant in a tuberculosis hospital since 1994. By an order of 12 July 2002, the hospital administration (“the respondent”) dismissed her. The applicant sued for unlawful dismissal and, in a judgment of 29 November 2002, the Didube-Chughureti District Court in Tbilisi found in her favour. Enforcing the terms of the above judgment, the respondent issued, on 29 November 2002, an order reinstating the applicant to her previous position. On 1 December 2002 the respondent offered, and the applicant accepted, an employment contract for six months. On 1 April 2003 the respondent notified the applicant that her contract would expire on 1 June 2003 and that no extension was possible. On 27 June 2003 the applicant filed another action, requesting, inter alia, that the respondent be ordered to re-employ her. She claimed that she had signed the six-month contract by mistake. On 18 June 2004 the Tbilisi Regional Court, overturning a lower instance decision, found for the applicant, ordering the respondent to offer her a contract of indefinite duration, as the situation had stood prior to her unlawful dismissal of 12 July 2002. The appellate judgment noted, in its operative part, that a cassation appeal lay within a month following delivery of its motivated copy to the parties. On 24 September 2004 the respondent lodged a cassation appeal. On 26 January 2005 the Supreme Court allowed the respondent’s cassation appeal, by quashing the appellate judgment of 18 June 2004 and dismissing the applicant’s employment action of 27 June 2003. The cassation court established that the Didube-Chughureti District Court’s binding decision of 29 November 2002 had been properly enforced, in so far as the respondent had duly issued, on 29 November 2002, an order reinstating the applicant to her permanent position. It was only subsequent to that reinstatement that the respondent had offered her an employment contract for six months, which she had accepted herself. The Supreme Court noted in that regard that the Labour Code did not preclude employers and employees from replacing a permanent labour relation with that of a definite duration. Nor did the labour legislation impose upon employers an obligation to extend contracts of limited duration against their will. Throughout the second set of proceedings, a labour union of which the applicant was a member submitted to the domestic courts legal arguments on her behalf. Pursuant to Article 264 §§ 1 and 2 of the Code of Civil Procedure (“the CCP”), if a cassation appeal had not been lodged within the statutory period, the appellate judgment became binding. Subsequent to Article 397 § 1 of the CCP, the period for lodging a cassation appeal, which could not be either restored or extended, was one month. That period started to run from the moment of delivery of the appellate judgment to a party in question. Delivery was made either by handing a copy of the appellate judgment or its communication by registered post to a party. Article 397 § 2 of the CCP further stated that, if the appellate court had orally pronounced the reasoned text of its judgment in the presence of a party concerned, the period for lodging a cassation appeal started to run upon pronouncement.