CASE OF MENSHAKOVA v. UKRAINE
Violation of Art. 6-1;No violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva
4. The applicant was born in 1941 and lives in Sevastopol. 5. She worked at the State-owned company “Sevastopolskyy Morskyy Zavod” (“the SMZ”). Following her retirement from the SMZ on 30 September 1996 the applicant worked for the SMZ's subsidiary company “Sovmorsudokorpus” (“the SMSK”) until July 1997. 6. She instituted several sets of court proceedings against her former employers, seeking initially recovery of salary arrears and subsequently compensation for late payment of salary pursuant to Article 117 of the Labour Code. Under that provision, retired employees were entitled to claim compensation if their salary or related payments due to them were not paid on the day of termination of employment, i.e. such compensation concerned delays in payment after termination of employment. 7. In July 1997 the applicant lodged a claim with the Nakhimovskyy District Court of Sevastopol (“the Nakhimovskyy Court”) against the SMZ. She sought recovery of salary arrears. 8. On 8 July 1997 the court awarded her 492.17 Ukrainian hryvnyas (UAH) in salary arrears. The period of the applicant's work concerning which she was awarded the above sum in salary arrears was not specified. 9. On 26 November 1997 the applicant instituted a new set of proceedings in the same court against the SMZ, seeking compensation for the latter's failure to pay her salary arrears in due time. 10. On 5 August 1998 the court, referring to paragraph 1 of Article 117 of the Labour Code, awarded her UAH 1,574.40 in compensation for non-payment of salary arrears for the period of 1 October 1996 – 5 August 1998, during which her salary arrears had remained unpaid. The court noted that the respondent company failed to appear before it without informing about the reasons for its absence. It further observed that in his written statement submitted to the court on 13 March 1998 the company's representative accepted the applicant's claim as regards the amount of compensation for the period of 1 October 1996 – 13 March 1998. 11. The judgments of 8 July 1997 (salary arrears) and 5 August 1998 (compensation for late payment) were not appealed against and became final. The enforcement proceedings in respect of these judgments were instituted on 15 October 1997 and 5 October 1998 respectively. On 18 March 1999 the applicant received the full amounts of the awards. 12. On 1 October 2001 the SMZ lodged a request with the Supreme Court for leave to appeal against the judgment of 5 August 1998 under the new cassation procedure. In its appeal the SMZ alleged that it had not been responsible for the delay in payment of salary arrears to the applicant, that its representative before the first instance court had not been given the right to accept the applicant's claim, that the SMZ had not been duly informed about the date and time of the hearing before that court, and that the latter's judgment did not contain calculations of the awarded amount. On 23 April 2003 the Supreme Court granted such leave and invited the applicant to participate in the hearing on the SMZ's appeal scheduled for 29 May 2003. On the latter date the Civil Chamber of the Supreme Court quashed the judgment of 5 August 1998 on the ground that the Nakhimovskyy Court had examined the case in the absence of the SMZ and remitted it for fresh consideration. 13. Meanwhile, on 15 March 1999 the applicant lodged a new claim with the Nakhimovskyy Court, seeking compensation for the period of 6 August 1998 – 15 March 1999, during which the SMZ had failed to pay her salary arrears awarded by the judgment of 8 July 1997. 14. On 31 July 2003 the applicant requested the Nakhimovskyy Court to examine her claims of 26 November 1997 and 15 March 1999 jointly. In the course of a hearing on 18 September 2003 the court allowed the applicant's request. 15. On 26 November 2003 the court adopted a judgment dismissing the applicant's claims. Its relevant provisions read as follows: “... The court, having heard the plaintiff [and] having examined the materials of the civil case, considers that the claims are unsubstantiated and may not be allowed for the following reasons. In particular, the court established that on 30 September 1996 the plaintiff had retired [from the SMZ]... By the judgment of the Nakhimovskyy Court ... of 8 July 1997, she was awarded 492.17 [Ukrainian hryvnyas] in salary arrears... Therefore, the dispute concerning the recovery of sums in the event of termination of employment was determined and [the matter] turned to the stage of enforcement. The said judgment was enforced on 18 March 1999... In accordance with Article 117 of the Labour Code of Ukraine, if [the employer] fails to pay the employee [whose contract of employment was terminated] the sums due to him within the time-limits set by the law, [the former] shall pay the employee his average wages for the whole period of the delay until the day of the factual payment. As it appears from the materials of the case, the plaintiff retired on 30 September 1996, the sum of her salary arrears on the day of the retirement was 492.17 [Ukrainian hryvnyas] which was recovered by the judgment of 8 July 1997. Therefore, the dispute concerning the recovery of sums in the event of termination of employment was determined on 8 July 1997 and [the matter] turned to the stage of enforcement. The plaintiff lodged with the court her first claim for compensation under Article 117 of the Labour Code of Ukraine on 26 November 1997 ... having missed the three-month term envisaged by Article 233 of the Labour Code of Ukraine. The plaintiff and her representative did not furnish sufficient and objective evidence demonstrating that there had been a reasonable excuse for missing the procedural term, and she did not request an extension of [that] term; thus, the court [discerns] no grounds to renew it in accordance with the requirements of Article 234 of the Labour Code of Ukraine. In the light of the foregoing... [the court] Decided: To dismiss the claim of Menshakova...” 16. The applicant appealed, contending that the time-limit at issue had started to run on 18 March 1999, the day when she had received her belated salary payment. 17. On 18 March 2004 the Sevastopol Town Court of Appeal (the former Sevastopol Court) upheld the judgment of 26 November 2003. It rejected the applicant's contention that the limitation period under Article 233 of the Labour Code had started to run on 18 March 1999, when she had actually obtained the amount awarded by the judgment of 8 July 1997. It held that the “factual payment” had been made on the latter date and that the limitation period had started to run from that day onwards. 18. On 28 July 2006 a panel of three judges of the Supreme Court rejected the applicant's request for leave to appeal in cassation as unsubstantiated. 19. In May 1998 the applicant instituted proceedings in the Nakhimovskyy Court against the SMSK, seeking recovery of salary arrears and compensation for their prolonged non-payment. 20. On 25 May 1998 the court awarded her UAH 1,767.38 in salary arrears and compensation for late payment of these arrears for the period of 7 July 1997 – 25 May 1998. This judgment was not appealed against and became final. On an unspecified date the Nakhimovskyy District Bailiffs' Service instituted enforcement proceedings in respect of the judgment. On 15 June 1999 the enforcement proceedings were discontinued upon the applicant's request. On 12 July 1999 the applicant received the full amount of the award of 25 May 1998. 21. In April 1999 the applicant again instituted proceedings in the Nakhimovskyy Court against the SMSK, seeking compensation for the latter's failure to pay her salary arrears from 26 May 1998 onwards. 22. On 19 April 1999 the court rejected the applicant's claims as unsubstantiated. The applicant appealed in cassation, contending that the proceedings instituted by her in May 1998 concerned salary arrears and compensation for their non-payment during the period of 7 July 1997 – 25 May 1998, while in her new claim lodged with the courts in April 1999 she requested compensation for the period after 25 May 1998. 23. On 15 June 1999 the Sevastopol Court quashed the decision of the first-instance court and adopted a new decision by which it discontinued the proceedings in the applicant's case. It held that the matter had already been determined by the Nakhimovskyy Court on 25 May 1998. The relevant parts of the decision of 15 June 1999 read as follows: “... In accordance with Article 227 § 3 of the Code of Civil Procedure of Ukraine, the court shall discontinue the proceedings, if there is a judgment, which has entered into the force of the law, concerning a dispute between the same parties, on the same subject-matter and grounds. It appears from the case materials that on 25 May 1998 the Nakhimovskyy District Court adopted a judgment, by which the plaintiff was awarded 1,767.38 [Ukrainian hryvnyas] in respect of salary arrears and average wages for the delay in payment in the event of termination of employment during the period of 8 July 1997 to 25 May 1998... Therefore, [the court finds that] the dispute concerning the recovery of wages for the period of the delay in payment has been determined on 25 May 1998 and that the admission of a new claim concerning the same subject-matter and based on the same grounds would be contrary to Articles 136 § 3 and 227 § 3 of the Code of Civil Procedure... Pursuant to Articles 310 and 315 of the Code of Civil Procedure of Ukraine, [the court] Decided: To quash the judgment ... of 19 April 1999 and to discontinue the proceedings concerning the claim of Menshakova ... against [the SMSK]...” 24. On 4 December 1995 the Sevastopol Arbitration Court (State court dealing with disputes between companies and other economic entities before June 2001) initiated bankruptcy proceedings against the SMZ. The applicant and Mr K. joined the proceedings as the SMZ's creditors. By a decision of 24 December 1998, the arbitration court ordered the inclusion of the Nakhimovskyy Court's awards of 8 July 1997 and 5 August 1998 in the applicant's favour into the list of creditor's claims. 25. By a decision of 24 March 1999, partially amended by a decision of 2 April 1999, the same court quashed the decision of 24 December 1998 and discontinued the bankruptcy proceedings on the ground that the SMZ had paid the amounts claimed by the applicant and Mr K. in full. 26. On 6 and 24 April 1999 respectively, Mr K. and the applicant lodged with the court requests for supervisory review of the decisions of 24 March and 2 April 1999. 27. On 13 July 1999 the Higher Arbitration Court rejected the request of Mr K. as unsubstantiated. 28. By a letter of 8 October 1999, the Sevastopol Arbitration Court informed the applicant that her request for supervisory review had not been submitted to the Higher Arbitration Court as it had been directed against the same decisions as the request of Mr K. 29. On 3 November 1999 the applicant instituted proceedings in the Leninskyy District Court of Sevastopol against the Sevastopol Arbitration Court, seeking compensation for the latter's failure to consider her request for supervisory review of its decisions of 24 March and 2 April 1999. 30. On 22 May 2000 the Leninskyy District Court discontinued the proceedings on the ground that the applicant's claim was not to be considered by the courts, as the Sevastopol Town Arbitration Court enjoyed immunity from civil proceedings in respect of its procedural activities. On 19 September 2000 the Sevastopol Court upheld the decision of the firstinstance court. 31. The relevant provisions of the Code read as follows: “... A judge shall not [deal with] a claim: ... 3) if there is a judgment, which has entered into the force of the law, concerning a dispute between the same parties, concerning the same subject and based on the same grounds, or a court's ruling endorsing the plaintiff's withdrawal of the claim or a friendly-settlement agreement between the parties...” “... A court shall discontinue the proceedings: ... 3) if there is a judgment, which has entered into the force of the law, concerning a dispute between the same parties, concerning the same subject and based on the same grounds, or a court's ruling endorsing the plaintiff's withdrawal of the claim or a friendly-settlement agreement between the parties...” In the course of consideration of a case in cassation the court shall verify whether the first instance court's judgment is lawful and well-founded... The court shall not be bound by the reasons of an appeal in cassation ... and must review the entire case. The [first instance court's] judgment shall be quashed in cassation and the proceedings shall be discontinued or the claim shall be left without consideration on the grounds envisaged in Articles 227 and 229 of the Code. 32. The relevant provisions of the Code, as worded at the material, read as follows: “An enterprise, entity, or organisation shall pay the sums due to a [dismissed or retired] employee on the day of termination of his employment. If the employee did not work on the day of his [dismissal or retirement], the abovementioned sums shall be paid to him not later than the day following the day of the submission of his payment request. In the event of a dispute over the amount to be paid to a [dismissed or retired] employee, [the employer] ... shall pay the undisputed amount within the time-limit envisaged by this [provision].” “In the absence of a dispute over the amount to be paid to a [dismissed or retired] employee, [the employer] ... shall pay him his average wages for the whole period of the delay in payment of the amounts envisaged by Article 116 of this Code until the day of their factual payment, if the delay was due to the fault of [the employer]... In the event of a dispute over the amount to be paid to a [dismissed or retired] employee, [the employer] ... shall pay him compensation envisaged by this [provision], if the dispute was resolved in favour of the employee. If the dispute was resolved partly in favour of the employee, the amount of compensation for the delay shall be determined by the body deciding on the dispute...” “An employee may submit an application concerning a labour dispute directly to a ... court within three months following the day on which he became or should have become aware of a violation of his right...” 33. The relevant extracts from the Resolution of the Plenary Supreme Court read as follows: “20. Having established, in the course of consideration of a case concerning recovery of [average] salary in connection with a delay in payment in the event of termination of employment, that an employee was not paid the amounts due to him ... on the day of his [dismissal or retirement] ... a court shall award, under Article 117 of the Labour Code, the employee average salary for the whole period of the delay in payment; if no such payment has been made before the consideration of the case [the court shall award average salary] until the date of the adoption of the judgment, safe in case the employer proofs that it was not responsible [for the delay]. The mere absence of funds shall not exclude the employer's responsibility. In case no payment [in the event of termination of employment] took place because of a dispute on the amount to be paid, the claims concerning the responsibility for the delay ... shall be allowed in full, if the dispute was determined in favour of the plaintiff or if a court dealing with the case reaches such a conclusion. In case the claim is partly allowed, the court determines the amount of compensation for the delay in payment, taking into account the disputed sum which [the plaintiff] was entitled to receive, the part of the claim it constituted, the value of the part [of the claimed amount] in comparison with average salary and other specific... 25. ...A failure to pay sums due to an employee on the day of his dismissal or, if he was absent from work on that day, on the day following the submission of his request for payment constitutes a ground for responsibility under Article 117 of the Labour Code. In this case, the running of a three-month time-limit for lodging an application with a court commences on the day following the payment of the above mentioned sums, irrespective of the delay in payment. A failure to meet the three-month time-limit for an application to a court as such constitutes a ground for dismissal of the claim, however, if the court finds that [the claim] is unsubstantiated, it shall dismiss [the claim] on [the latter] ground...”