CASE OF ATANASOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Violations of Art. 6-1;Non-pecuniary damage - award
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger
5. The applicant was born in 1937 and lives in Bitola. He worked for “Aparati za domakinstvo”, a socially-owned company which was later restructured under the Government’s decision of August 1997 allowing its transformation. 6. On 21 February 1997 the applicant was reassigned to the post of technologist with the stated aim of increasing productivity and efficiency and improving operations. 7. On 17 March 1997 the applicant brought a civil action seeking to have the reassignment annulled since, in thirty years with the same employer, he had never worked as a technologist. 8. On 21 May 1997 the Bitola Court of First Instance (“the first-instance court”) dismissed the applicant’s claim. On 29 September 1997 the Bitola Court of Appeal quashed this decision ordering the lower court to examine what had been the applicant’s status with the employer; whether and how had the bankruptcy proceedings, initiated meanwhile against the employer, affected the applicant’s employment and whether the employer had been restructured. 9. On 30 September 1998 the first-instance court annulled the employer’s decision of 27 May 1997 dismissing the applicant (in respect of which the applicant had brought a separate action). According to the Government, in these proceedings the applicant had sought to have the proceedings concerning his reassignment suspended. 10. On 29 March 1999 the applicant’s claim was upheld at first instance. The court held that although the reassignment decision had referred to the relevant provisions of the Labour Act and the General Collective Agreement (see “Relevant domestic laws” below) it had not provided the applicant with concrete reasons for his reassignment. In this connection, it stated that section 27 of the Labour Act had been of a declaratory nature without providing any concrete reason for reassignment. On 29 September 1999 the Bitola Court of Appeal quashed this decision finding that the reassignment decision had provided reasons for the applicant’s reassignment. However, it ordered the first-instance court to determine whether the reassignment had been justified. 11. On 26 March 2001 the first-instance court, deciding the case for the third time, upheld the applicant’s claim and annulled the reassignment decision. The court established that the applicant had worked for the same employer since 1966 in different posts and that no concrete reasons had been given for his reassignment. In this latter respect, it referred to a court annulment, for lack of concrete reasons, of the reassignment of Mr R.V., the applicant’s colleague, which had been based on the same grounds, as the applicant’s (see paragraph 6 above, П.бр. 680/97 of 9 June 1999). Noting that the reassignment decision had been rendered under section 27 of the Labour Act and section 11 of the General Collective Agreement, it stated, inter alia, “... in case of reassignment, an employee should be provided with a reasoned decision in writing so that he or she can protect his or her rights and the court may review its lawfulness. In the present case, the disputed decision does not set out any reasonable ground, which implies that the employer had not established the need for the [applicant’s] reassignment. If no reasonable grounds are provided, the reassignment of any employee, including the [applicant], is unlawful. [The employer] has only quoted the terms for reassignment, as specified in the Collective Agreement, without providing any reasonable ground ...” 12. The court also concluded that the reassignment had been unjustified given the applicant’s age and lack of experience required for the new post. 13. On 24 May 2001 the Bitola Court of Appeal dismissed the employer’s appeal and upheld the lower court’s decision. It stated, inter alia: “... the reassignment decision does not set out any reasons. The employer has merely referred to the Collective Agreement’s objectives of increasing the productivity and efficiency of the applicant and for work organisation purposes. It does not mean that by mere reference to these grounds, the employer has established the need for the [applicant’s] reassignment...It means that [the applicant] was reassigned to a post which does not correspond to his work experience ...” 14. On 29 May 2003 the Supreme Court allowed an appeal on points of law submitted by the employer on 9 July 2001 and overturned the lower courts’ decisions. It held that they had wrongly applied national law. Referring to section 27 of the Labour Act and section 11 of the Collective Agreement, it found that the employer had been entitled to assess the need for reassignment - which would be well-founded only if an employee was reassigned to a post commensurate with his or her vocational capacity. It further held that the issue as to whether the employee would be more efficient in the new post went beyond the scope of judicial review. It concluded that: “Concerning the grounds for reassignment provided in the [disputed] decision, the court considers that it is sufficient to state one of the terms specified in the Collective Agreement. The disputed decision meets this requirement ...” 15. Under Article 101 of the Constitution, the Supreme Court is the highest court providing uniformity in the implementation of laws by the courts. 16. Section 27 (2) of the Labour Act (Закон за работните односи), as in force at the material time, provided that in cases where collective agreements applied, an employee could be reassigned to any post commensurate with his or her vocational capacity. 17. Under section 11 of the Collective Agreement, an employee may be reassigned to a post commensurate with his or her qualifications with a view to, inter alia, improving efficiency. 18. Section 408 provided, inter alia, that the court should take into consideration the need for the urgent settlement of employment disputes. 19. In two decisions of 1997 and 1999, the Supreme Court ruled that employers were required to give concrete reasons for reassignment and that mere reference to section 27 of the Labour Act and section 11 of the collective agreement was insufficient unless concrete facts, circumstances and grounds were provided for the reassignment (the Supreme Court’s decisions of 5 February 1997 (Рев.бр.474/96) and 23 June 1999 (Рев.бр.312/98)). 20. In 2005 and 2006, the Supreme Court ruled that under section 27 of the Labour Act, it was sufficient that the new post corresponded to the qualifications of the person concerned. Only employers, and not the courts, were entitled to assess the need for reassignment and employers were not required to provide concrete reasons (the Supreme Court’s decisions of 7 December 2005 (Рев.бр.768/04) and 22 March 2006 (Рев.бр.285/05)).