The regional court will have to re-assess the case about dismissal of a civil servant after parental leave
23 August, 2013
On the 23rd of August, the Department of Administrative Cases of the Senate of the Supreme Court cancelled the judgement of the Administrative regional court, by which application to cancel decision about dismissal of the applicant from the post in Rural Support Service was rejected. The Senate transferred the case to a new review, so that the court of appeal would verify circumstances of the case, which may be important within adjudication of the case. The judgement of the Senate is not reversible.
When reviewing the case, the Senate reprieved proceedings in 2011, to ask the European Court of Justice prejudicial questions about interpretation of legal provisions of the European Court of Justice, which regulate equal treatment towards employees of male and female gender and parental leave.
Regarding question, how much employees, who have taken parental leave, should be protected, the European Court of Justice concluded that an employer is not prohibited to dismiss an employee, who is using parental leave, if this dismissal is not related to notification or use of parental leave. In relation to circumstances of the case being examined, the European Court of Justice concluded that directives do not prohibit the employer, when eliminating a position, evaluates an employee, who is using parental leave, to transfer him/her to the same or similar position in accordance with his/her labour contract or labour relations. This finding is also effective, when reduction of number of employees in state administration due to economic difficulties is employer’s goal.
Taking into account the abovementioned, the Senate concluded that in the case being examined an institution was not prohibited to implement measures (inter alia, evaluation of servants in absentia), in result of which the applicant, having come back from parental leave, could lose position, if only these measures were not substantiated with use of parental leave and applicant’s right to similar or equal job offer has been preserved.
In opinion of the Senate, the regional court, when assessing the case anew, should draw particular attention to evaluation of employees performed by the institution and to the question, if implementation of new criteria in evaluation procedure was not unfavourable to the applicant and if the applicant, taking into account her absence, could objectively comply with criteria stated.
Moreover, the European Court of Justice indicated that the national court must verify, if in such circumstances, which exist in the case examined, the employer could not find an opportunity to the applicant to keep her position, and in affirmatory case – if a job granted to her was equal or similar job, which corresponds to her labour contract or labour relations.
In opinion of the Senate, the regional court has not verified and assessed, if position in the Division of Information Systems Development of the Information Department of the Rural Support Service, in which the applicant was appointed after elimination of previous position, is considered to be similar or equal job.
As well, in opinion of the Senate, verification should be performed upon issue, at which moment the institution established necessity to eliminate structural unit, where position was offered to the applicant. Moreover, as the regional court had clarified before, the Rural Support Service had created position the applicant was transferred to, anew. In opinion of the Senate, in this relation, action of the institution, when creating new position in circumstances, when reorganisation and optimisation of the state administration is performed rapidly, and several positions were eliminated, looks even more contradictious.
Following circumstances are established in the case:
In 2005, the applicant started work in position of the senior rapporteur of the Legal Department of the Rural Support Service. In 2007, the applicant was granted parental leave. After parental leave, in 2009, the institution, having warned the applicant about elimination of civil service relations due to liquidation of a servant’s position, offered her another position of the senior rapporteur in the Division of Information Systems Development of the Information Department of the Rural Support Service, to which the applicant had agreed. However, position in the Division of Information Systems Development of the Information Department was soon eliminated (in 11 days).
The applicant appealed against the decision of the institution in the Ministry of Agriculture, which considered the decision of the Rural Support Service to be lawful.
When reviewing the case in the first instance, on the 21st of October, 2009, the Administrative district court satisfied claim in part and considered decision of the Ministry of Agriculture to be unlawful, binding the Republic of Latvia to make good non-pecuniary damage in amount of LVL 3000.
When reviewing the case in appellate proceedings, on the 20th of December, 2010, the Administrative regional court rejected the application.
Information prepared by Baiba Kataja, the press secretary of the Supreme Court
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