The Constitutional Court of the Republic of Belarus comprising the Presiding Officer - Chairman of the Constitutional Court of the Republic of Belarus P.P. Miklashevich, Deputy Chairman A.V. Maryskin, judges T.S. Boiko, V.P. Isotko, V.V. Podgrusha,  L.M. Ryabtsev, O.G. Sergeeva, A.G. Tikovenko, V.Z. Shuklin pursuant to part eight of Article 22 of the Code of the Republic of Belarus on Judicial System and Status of Judges considered issues relating to legal regulation of dismissal benefits payment when cancelling the employment agreement.   

Having analysed the relevant provisions of the Constitution of the Republic of Belarus, the Labour Code of the Republic of Belarus (hereinafter – LC), Decree by the President of the Republic of Belarus “On Supplementary Measures to Improve Labour Relations, Tighten up Work and Performing Discipline” of July 26, 1999 No. 29 (hereinafter – Decree No 29), Resolutions by the Council of Ministers of the Republic of Belarus “On Approving a Model Contract of Employment” of August 2, 1999 No. 1180 (with further alterations and additions) and “On Approving the Provision on Procedures and Terms of Making Contracts of Employment” (with further alterations and additions) of September 25, 1999 No. 1476, Rulings of the Plenum of the Supreme Court of the Republic of Belarus “On Consideration Court Practice of Labour Disputes coming from Contracts of Employment” of June 26, 2008 No. 4 the Constitutional Court found the following.

1. Pursuant to the Republic of Belarus as a social state based on the rule of law (part one of Article 1 of the Constitution), guaranteeing the rights and liberties of the citizens of Belarus that are enshrined in the Constitution and the laws, and specified in the state's international obligations (part three of Article 21), the Constitution establishes that restriction of personal rights and liberties shall be permitted only in the instances specified in law, in the interest of national security, public order, the protection of the morals and health of the population as well as rights and liberties of other persons (part one of Article 23).

Articles 41 and 47 of the Constitution provide citizens with the rights to work, social security, protection of their economic and social interests. These rights are supplemented and guaranteed by relevant norms of LC.

In particular, according to part three of Article 48 of LC an employer is obliged to pay to an employee dismissal benefits amounting to no less than average two weeks wages when cancelling the employment agreement due to the employer’s violation of labour legislation, the collective or employment agreement.

According to part one of Article 41 of LC an employee has the right to demand for pre-term cancellation of the fixed-term employment agreement in the cases of his sickness or disability, which turn to be an obstacle for his work under the employment agreement, as well as the employer’s violation of labour legislation, the collective or employment agreement, and on the basis of other valid excuses. Herewith part three of Article 41 of LC lays down that if the fixed-term employment agreement is being cancelled due to such valid excuses as the employer’s violation of labour legislation, the collective or employment agreement, the employer shall pay to the dismissed employee dismissal benefits amounting to average two weeks wages.

Accordingly, the employee’s right to dismissal benefits in the case of cancellation of the fixed-term employment agreement due to the employer’s violation of labour legislation, the collective or employment agreement has been enshrined by the legislator in LC.

The content of norms in part three of Article 41 and in part three of Article 48 of LC shows their imperative nature and thereby provides the employee’s right to dismissal benefits in the amount specified in LC.

2. According to part two of Article 17 of LC a contract is a kind of the fixed term employment agreement that shall be concluded pursuant to the procedures and terms set forth in labour legislation.

Under explanatory notes to point 1 of Decree No. 29 contracts are deemed to be employment agreements concluded in writing for a term fixed therein and having particular features in comparison with general labour norms. In the Provision on Procedures and Terms of Making Contracts of Employment approved by Resolution of the Council of Ministers of the Republic of Belarus of September 25, 1999 No. 1476 the definition of “a contract” has been refined and supplemented. According to point 2 of this Provision a contract is deemed to be an employment agreement concluded in writing for a term fixed therein and having particular features in comparison with general labour norms and providing for a specific minimal compensation for deterioration of the employee’s legal situation.

Consequently along with common features of a fixed-term employment agreement the contract has particular ones specifying it to be a kind of the agreement. These particularities established by legislation especially include procedures and terms of making the contract as well as the specific minimal compensation for deterioration of the employee’s legal situation.

At present the amount of minimal compensation for deterioration of the employee’s legal situation is established to amount to three average monthly wages if applied merely to pre-term cancellation of the contract due to its terms nonfulfillment or improper fulfillment through employer's fault (part one of point 2 of Resolution by the Council of Ministers of the Republic of Belarus of August 2, 1999 No. 1180). In accordance with subpoint 7.8 of point 7 of Model Contract of Employment approved by the mentioned Resolution of the Council of Ministers of the Republic of Belarus nonfulfillment or improper fulfillment of contract terms also include the employer’s violation of labour legislation and the collective agreement. According to part two of point 2 of the same Resolution employees who have reached a retirement age (men at the age of 60, women – 55 years) and who are entitled to overall pension as well as employees who have not reached a retirement age but have been receiving pension (except labour disability, survivor’s and social pension) are not provided with the minimal compensation.

Labour legislation that establishes particular features of the contract does not rule the matters on dismissal benefits at its cancellation. It follows that these matters are not coming from the contract particularities and such cases should be subjected to general norms of LC regulating dismissal benefits when cancelling the employment agreement on the basis of relevant excuses inclusive the norm in part three of Article 41 thereof.

Accordingly at cancellation of the contract due to the employer’s nonfulfillment or improper fulfillment of its terms (the employer’s violation of labour legislation, the collective or employment agreement) under the existing LC the employee shall be paid dismissal benefits amounting to average two weeks wages whereas the foregoing Resolution by the Council of Ministers of the Republic of Belarus of August 2, 1999 No. 1180 provides the employee with minimal compensation for deterioration of his legal situation equal to three average monthly wages. Both payments pursue the same – to mitigate loss of work effects for the employee. They both are coming from the same reason of cancellation of the fixed-term employment agreement. But they differ in title and amount of money. What practically results in complicated choice of legal norms to be applied.

3. According to paragraph two of part one of Article 51 of the Code of the Republic of Belarus on Judicial System and Status of Judges the Plenum of the Supreme Court of the Republic of Belarus (hereinafter – the Plenum of the Supreme Court) shall consider issues on generalising court practice and statistics and shall clear law enforcement by way of judicial interpretation to ordinary courts.

Having deliberated consideration court practice on contract form of employment, the Plenum of the Supreme Court in part three of point 21 of Ruling thereof of June 26, 2008 No. 4 “On Consideration Court Practice of Labour Disputes coming from Contracts of Employment” cleared that “dismissal benefits amounting to average two weeks wages (part three of Article 41 of LC) due to the employer’s violation of labour legislation, the collective or employment agreement shall not be provided when cancelling the contract”.

In view of the current court practice and guiding courts to uniform law enforcement the Plenum of the Supreme Court has actually excluded the application of the norm from part three of Article 41 of LC when cancelling the contract.

The Constitutional court notes that while clearing the application of part three of Article 41 of LC the Plenum of the Supreme Court had exceeded its powers. Its Ruling No 4 of June 26, 2008 had excluded the opportunity to be provided with dismissal benefits not only for employees entitled to the minimal compensation for deterioration of legal situation, but also for employees who have reached the retirement age and therefore have had the right to overall pension as well as for employees who have not reached the retirement age, but have been receiving pension (except for labour disability, survivor’s and social pension), who are not paid the minimal compensation at cancellation of the contract.

In the opinion of the Constitutional Court different approaches to legal regulation of dismissal benefits and minimal compensation for deterioration of legal situation at cancellation of the contract due to its terms nonfulfillment or improper fulfillment through the employer's fault result in uncertain comprehension and application of relevant legal norms. A risen lack of legal clarity may be overcome by making conforming alterations and additions to part three of Article 41 and part three of Article 48 of LC for the instances of dismissal benefits non-payment should be merely specified at a law level.

In view of the foregoing, in pursuance of part two of Article 59, part one of Article 116 of the Constitution of the Republic of Belarus, Articles 22 and 24 of the Code of the Republic of Belarus on Judicial System and Status of Judges the Constitutional Court  

 

 

 

 

Presiding Officer-

Chairman of the Constitutional Court

of the Republic of Belarus

P.P.Miklashevich