Rights Archives: Right to decent work

R.K.B. v. Turkey (Communication No. 28/2010)

On 24/02/2012 in

Year: 2012 (Date of Decision: 24 February, 2012)

Forum, Country: UN CEDAW; Turkey

Standards, Rights: Non-discrimination and equal protection of the law; Right to decent work; Women

Summary Background: In this case, the issue at stake was whether the complainant (or “author” of the communication) had been unjustifiably dismissed from her workplace on the basis of gender stereotypes. While she had been fired due to a rumour that she had had an extra-marital affair with a male colleague, her male co-worker’s contract was not terminated. Before leaving, under threat of the spread of rumours of her relationship with other men, she was pressured, but refused, to sign a document that attested that she had benefited from all her rights under contract. Local courts had found in her favour but did not reference gender discrimination.

Holding: The Committee found that the local Turkish courts [State institutions] failed to give due consideration to the clear, prima facie indication of infringement of equal treatment in the field of employment [para. 8.6]. By scrutinizing in the course of the case, the moral integrity of only the author (a female employee) but not that of male employees, the courts revealed their lack of gender sensitivity in breach of Committee observations in General Recommendation No. 28 (2010) [paras. 8.6-8.7]. The Committee emphasized that full implementation of the Convention imposes an obligation on States parties not only to take steps to eliminate direct and indirect discrimination and improve the de facto position of women, but also to modify and transform gender stereotypes and eliminate wrongful gender stereotyping, a root cause and consequence of discrimination against women. The Committee was of the view that gender stereotypes are perpetuated through a variety of means and institutions including laws and legal systems and that they may be perpetuated by State actors in all branches and levels of government and by private actors. In this case, the courts had helped perpetuate gender stereotyping [para. 8.8].

The Committee concluded that the author’s rights against gender stereotyping and gender discrimination as guaranteed under ICEDAW had been violated. Accordingly the Committee held that appropriate reparation should be provided to the author; that the State should take measures to implement laws on gender equality in the workplace; and that the State should provide training to judges, lawyers and law enforcement personnel on the Convention and women’s rights so as to ensure that stereotypical prejudices and values do not affect decision-making [para. 8.10].

Additional Comments: The decision highlights that merely adopting Comments: legislation protecting rights is never sufficient. Proper enforcement is key to the effective realization of rights.

Link to Full Case: http://www2.ohchr.org/english/law/jurisprudence.htm, direct link: http://www2.ohchr.org/english/law/docs/CEDAW/CEDAW-C-51-D-28-2010_en.doc

Lopez and Syndicat SYNPTAC-CGT v. SARL Théâtre d’Aubervilliers

On 06/12/2011 in

Year: 2011 (Date of Decision: 6 December, 2011)

Forum, Country: Industrial/Labour Court; France

Standards, Rights: Non-discrimination and equal protection of the law; Proportionality; Right to decent work

Summary Background: Issue at stake in this case: the lawfulness of the dismissal of the plaintiff, a representative of a trade union who, as part of her responsibilities within the company board, denounced to the police and the labour inspectorate in 2005 gaps in safety conditions at her work place. Since then, and although she had been under permanent contract for four years, she had been facing threats of dismissal and disciplinary measures against her. The labour inspectorate and several administrative and judicial bodies had questioned and sought to prevent the dismissal of Ms Lopez.

Holding: The judge found a violation of several articles of the Labour Code (Code du Travail), especially article

Aucune personne ne peut être écartée d’une procédure de recrutement ou de l’accès à un stage ou à une période de formation en entreprise, aucun salarié ne peut être sanctionné, licencié ou faire l’objet d’une mesure discriminatoire, directe ou indirecte, telle que définie à l’article 1er de la loi n° 2008-496 du 27 mai 2008 portant diverses dispositions d’adaptation au droit communautaire dans le domaine de la lutte contre les discriminations, notamment en matière de rémunération, au sens de l’article L. 3221-3, de mesures d’intéressement ou de distribution d’actions, de formation, de reclassement, d’affectation, de qualification, de classification, de promotion professionnelle, de mutation ou de renouvellement de contrat en raison de son origine, de son sexe, de ses moeurs, de son orientation sexuelle, de son âge, de sa situation de famille ou de sa grossesse, de ses caractéristiques génétiques, de son appartenance ou de sa non-appartenance, vraie ou supposée, à une ethnie, une nation ou une race, de ses opinions politiques, de ses activités syndicales ou mutualistes, de ses convictions religieuses, de son apparence physique, de son nom de famille ou en raison de son état de santé ou de son handicap.

prohibiting any discrimination including on the ground of union activities or membership [p. 5]. In particular, the judge found a clear causality link between the steps taken by Ms Lopez to ensure safe and fair conditions of work within her company and the attacks against her, based on the chronology of events, and the fact that no complaint had been made previously about the employee [p. 6]. He also reviewed the reasons put forward by the employer to explain the disciplinary measures and considered the latter has failed to provide objective elements and thus these reasons were disproportionate and insufficient to justify a dismissal [p. 6].

Additional Comments: While he did not decide in favour of the plaintiff in respect of her allegation of psychological harassment, on the grounds of insufficiency of evidence, the judge did order the maintenance of the plaintiff in her job and her reinstatement in the responsibilities of 2004, before the conflict with her employer. He further awarded Ms Lopez damages of 40,000€ to compensate the five years of discrimination on the ground of union activities and of facing disciplinary measures against which she had to defend herself.

Link to Full Case: For contact details of the Conseil de Prud’hommes de Bobigny, please visit: http://www.caparis.justice.fr/index.php?rubrique=11016&ssrubrique=11069&article=14715

Copy of the decision on file with ICJ

Public Service Alliance of Canada v. Canada Post Corporation and Canadian Human Rights Commission

On 17/11/2011 in

Year: 2011 (Date of Decision: 17 November, 2011)

Forum, Country: Supreme Court; Canada

Standards, Rights: Non-discrimination and equal protection of the law; Reasonableness; Right to decent work; Women

Summary Background: The Canadian Supreme Court reviewed a decision of the Canadian Human Rights Tribunal (CHRT) regarding a claim by the Public Service Alliance of Canada (PSA) that employees in the male-dominated Postal Operations Group were paid more than employees in the female-dominated Clerical and Regulatory Group for work of equal value, contrary to section 11

(1) Where a complaint alleging a difference in wages is filed by or on behalf of an individual who is a member of an identifiable occupational group, the composition of the group according to sex is a factor in determining whether the practice complained of is discriminatory on the ground of sex. (2) In the case of a complaint by an individual, where at least two other employees of the establishment perform work of equal value, the weighted average wage paid to those employees shall be used to calculate the adjustment to the complainant’s wages.

of the Canadian Human Rights Act (“equal wages” provision.) Using job evaluations to determine the comparability of the work of the two groups of employees, the CHRT had determined that there was sufficient evidence of wage discrimination between 1982 and 2002. Canada Post commenced judicial review proceedings in the Federal Court, where the CHRT’s decision was overturned.

On appeal to the Federal Court of Appeal, the majority agreed with Canada Post that the CHRT decision was unreasonable, as the use of job evaluations did not meet the requisite standard of proof to support a finding that wage discrimination had taken place. The PSA appealed to the Supreme Court of Canada.

Holding: The Supreme Court endorsed the reasons of the dissenting Evans J.A from the Federal Court in support of the initial decision by the CHRT. This was based on the arguments that the CHRT was reasonable in using the Postal Operators group as the male-dominated comparator, even though this group included a large number of highly paid women [para. 5]. Justice Evans reaffirmed that this did not preclude the existence of systemic gender discrimination elsewhere in the corporation [para. 69]. Secondly, Evans J.A. supported the CHRT’s reliance on the job evaluations and its application of the “balance of probabilities” standard of proof in finding that a wage gap existed between the two groups [para. 68]. He reiterated the Tribunal’s discretion in choosing a methodology to determine the existence and extent of a wage gap, and that it did not act “unreasonably” in adopting one proposed by the CHRC. Finally, Evans J.A and the Supreme Court emphasized the high degree of discretion awarded to specialized tribunals in their determination of appropriate remedies. The Tribunal at first instance did thus not err in awarding compensation to “make the victims whole,” while reducing the cost of the damages where the magnitude of the damage was uncertain.

The decision of the CHRT was subsequently restored, requiring Canada Post to compensate 50 per cent of the wage gap between the two groups over the twenty-year period.

Link to Full Case: Public Service Alliance of Canada v. Canada Post Corp., 2011 SCC 57, [2011] 3 S.C.R. 572, available at http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/7975/index.do

Tahirzade v. AMEC

On 15/07/2011 in

Year: 2011 (Date of Decision: 15 July, 2011)

Forum, Country: Constitutional Court, Azerbaijan

Standards, Rights: Right to decent work; Right to health; Right to life

Summary Background: Mr Tahirzade initiated civil proceedings against the “AMEC Services Limited” company, claiming compensation for harm caused to his health in the performance of his employment. The assessment of this claim required an interpretation by the Constitutional Court of the expressions “employer, guilty (completely or partially)” and “through employer’s fault” contained in the text of article

1. The employer who is fully or partially responsible for unfortunate incidents or work related illness is to pay in full both compensation for losses or poor health of the employee, and his medical bills for curing himself, and also pay the costs of social security organizations which paid the employee pension and stipends. 2. The employee who has suffered health problems as a result of production accidents or work illnesses that were employer’s fault, or family members and other dependents of an employee who has died because of the same reasons are to be paid a lump sum amount, monthly payments, and other extra fees related to the unfortunate incident as specified by law.

of the Labour Code.

Holding: The Court addressed the right to work as enshrined in article

I. Labor is the basis of personal and public prosperity. II. Everyone has the right to choose independently, based on his/her abilities, kind of activity, profession, occupation and place of work. III. Nobody might be forced to work. IV. Labor agreements are concluded voluntarily. Nobody may be forced to conclude labor agreement. V. Based on decisions of the law court there might be cases of forced labor, terms and conditions being specified by legislation; forced labor is permissible due to orders of authorized persons during the term of army service, state of emergency or martial law. VI. Everyone has the right to work in safe and healthy conditions, to get remuneration for his/her work without any discrimination, not less than minimum wages rate established by the state. VII. Unemployed persons have the right to receive social allowances from the state.III. The state will do its best to liquidate unemployment.

of the Constitution. As per article 35.I, the right to work impacts on the welfare and development of individuals and families and plays a vital role in both personal and public wellbeing. The Court affirmed the right to fair payment of wages and safe working conditions. It reaffirmed the legal protection of the right to safe and healthy working conditions and to receive payment from employment at or above the minimum wage set, and free from discrimination (article 35.VI Azerbaijan Constitution.) The Court emphasized the link between this right and the rights to life and health.

With regard to financial liability and compensation for violation of labour safety regulations, an employer may only be held liable where their guilt is proven. The Court considered article 239 of the Labour Code and held that an employer will only be liable for harm suffered to an employee’s health due to violations of labour safety standards where the employer is at fault. Article 239 of the Code requires an employer guilty of occupational accident or illness to pay full compensation to the employee for damage resulting from the injury, as well as costs of treatment, benefits and other additional costs established by the Civil Code.

According to the text of article 239 of the Labour Code, regardless of the full or partial fault of an employer, where the conditions in article 191 of the Code are satisfied (a. detection of actual damage, b. the act/omission of the guilty party contradicts a law and c. causal link between act/omission and damage suffered), the employer bears full responsibility for providing redress to the employee.

Link to Full Case: http://www.codices.coe.int/NXT/gateway.dll/CODICES/precis/eng/eur/aze/aze-2012-2-002?f=templates&fn=default.htm&vid=

Constitutional Case No. 15 of 2010, State Gazette Issue 91, p. 3

On 11/11/2010 in

Year: 2010 (Date of Decision: 11 November, 2010)

Forum, Country: Constitutional Court; Bulgaria

Standards, Rights: Non-retroactivity; Rule of law; Welfare State; Right to decent work

Summary Background: This case addressed two independent applications, one by the President of Bulgaria and the other by 51 parliamentarians, seeking a declaration that para. 3 of the transitional provisions and articles 176.3 and 224.1 of the Labour Code, and articles 59.5 and 61.2 of the law on state officials, are unconstitutional and contrary to treaties to which Bulgaria is party, including the ICESCR. These provisions amended entitlements to untaken paid leave prior to the provisions’ entry into force.

Holding: The Constitutional Court held that para. 3 of the transitional provisions of the Labour Code and para. 8(a) of the transitional and final provisions of the law on state officials were contrary to articles 57.1, 16, 48.1 and 48.5 of the Constitution of Bulgaria; indent 5 of the Preamble to the Constitution of Bulgaria, articles 2.1 and 24 of the UDHR, and article

1. Every person to whom this Convention applies shall be entitled after one year of continuous service to an annual holiday with pay of at least six working days. 2. Persons, including apprentices, under sixteen years of age shall be entitled after one year of continuous service to an annual holiday with pay of at least twelve working days. 3. The following shall not be included in the annual holiday with pay: (a) public and customary holidays; (b) interruptions of attendance at work due to sickness. 4. National laws or regulations may authorise in special circumstances the division into parts of any part of the annual holiday with pay which exceeds the minimum duration prescribed by this Article. 5. The duration of the annual holiday with pay shall increase with the length of service under conditions to be prescribed by national laws or regulations.

of ILO Convention No. 52, which protect the interdependence of fundamental rights, the right to work, the right to leave and the principle of the welfare state.

The Constitutional Court dismissed the application for unconstitutionality of article 176.3 of the Labour Code and article 59.5 of the law on state officials because the articles’ stipulation that the right to paid annual leave lapses two years after the leave is granted extinguishes the exercise of the right to leave rather than the right itself.

The Constitutional Court found that article 224.1 of the Labour Code and article 61.2 of the law on state officials violated article

A person dismissed for a reason imputable to the employer before he has taken a holiday due to him shall receive in respect of every day of holiday due to him in virtue of this Convention the remuneration provided for in Article 3.

of ILO Convention No. 52, as well as the principle of the rule of law for contradicting articles 48.5 and 176.3 of the Labour Code, in light of the right to work enshrined in articles 16 and 48.1 of the Constitution of Bulgaria.

Additional Comments: The extent to which the Constitutional Court accounts for European and international legal documents is of interest.

Link to Full Case: Summary by the Constitutional Case Law InfoBase of the Venice Commission: http://www.codices.coe.int/NXT/gateway.dll/CODICES/precis/eng/eur/bul/bul-2010-3-003

Full judgement (only available in Bulgarian): http://dv.parliament.bg/DVWeb/broeveList.faces

Holding N. 1320 –O-O of the Constitutional Court of the Russian Federation (Red Star Consulting LLC v. former employee)

On 13/10/2009 in

Year: 2009 (Date of Decision: 13 October, 2009)

Forum, Country: Constitutional Court; Russia

Standards, Rights: Procedural fairness and due process; Nondiscrimination and equal protection of the law; Right to decent work

Summary Background: The case raised the issue of the constitutionality of article 393 of the Labor Code of the Russian Federation, prescribing the exemption of employees from the payment of legal expenses in labor litigation. In January 2009 the plaintiff, “Red Star Consulting” LLC, sued a former employee in a District Court of Archangelsk in an attempt to recover a compensation for legal expenses, including power of attorney and the attorney’s legal services, arising from a labor dispute between the two parties. The Court ruled against “Red Star Consulting” LLC, while in part upholding the claims of the employee. The regional Appeals Court of Archangelsk upheld the decision without changes. “Red Start Consulting” subsequently filed an application to the Constitutional Court, alleging that article 393 of the Labor Code violated the Russian Constitution, particularly article 19, paragraph 1, which prescribes the principle of equality before the law in court. The petitioner also alleged that there was no precedent in Russia, by a general jurisdiction court, on the issue of applicability of article 393 of the Labor Code to civil litigation.

Holding: The Constitutional Court rejected the claims of the petitioner and declared its application inadmissible [para. 2.1].

In its reasoning, the Court stated that the right to judicial protection belongs to the fundamental and inalienable human rights and freedoms and, at the same time, constitutes a guarantee for the enjoyment of all other rights and freedoms [para. 2.3].

The provisions of article 37 of the Russian Constitution, prescribe freedom of the employment agreement, as well as the right of the employee and of the employer to resolve, upon mutual agreement, questions arising from the institution, subsequent change and termination of labour relations. They also determine the obligation of the government to ensure the appropriate protection of the rights and legal interests of the employee as the economically weakest part within the labour relation. The Court underlines that this is consistent with the fundamental goals of the legal regulation of labour within the Russian Federation as a social state of law (article 1 part 1, article 2 and article 7 of the Constitution).

Accordingly, the lawmaker shall consider not only the economic dependence of the employee upon the employer, but also the organizational dependence of the latter upon the former. Therefore, the lawmaker shall establish procedural safeguards for the protection of the labour rights of employees when considering labour litigation in court, in the absence of which (i.e. procedural safeguards) the “realization” of the employee and, consequentially, of the right to fair trial, would remain unaccomplished.

Among such procedural guarantees the Court mentions: the possibility to address the court of a trade union or a counsel defending the rights of employees (article 391 of the Labour Code of the Russian Federation), the assignment of the burden of proof on the employer (for example, in the cases foreseen by article 247 of the Labour Code or in litigation on the rehiring of personnel, whose labour agreement has been breached on the initiative of the employer), and the exemption of the employee from the payment of legal expenses (article 393 of the Labour Code) [para. 2.5].

The Court concludes by emphasizing that the rule of exempting the employee from legal expenses upon the adjudication of labour disputes aims at ensuring his right to legal protection, in order to provide him with an equal access to justice and to respect the principle of equality, embedded in article 19(1) of the Constitution of the Russia Federation [para. 2.6].

For all the above-mentioned reasons, the Court held the application by “Red Star Consulting” inadmissible.

Link to Full Case: http://www.ksrf.ru/ru/Decision/Pages/default.aspx

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