Non-ratified treaties;¹ Instruments not subject to ratification²

Dismissal based on employee’s conduct/ Procedural requirements/ Use of international law as a guide for interpreting domestic law

Mr. B. D., who was the head of the Monitoring Department at Tbilisi State University, had been dismissed. The employer had terminated his employment contract based on the grounds that on 23-24 August (several days before the dismissal) the employee was absent from work without any valid reason. Both the Tbilisi City Court and the Tbilisi Court of Appeal rejected B. D.’s claim seeking reinstatement and compensation of lost income. B. D. filed an appeal before the Supreme Court of Georgia.

The Supreme Court had to determine whether the termination was justified by a valid reason and was lawful. The Supreme Court addressed two issues; namely, whether absence from work could be a sufficient grounds for an employee’s dismissal, and whether it was permitted to dismiss an employee without notification or warning, and without affording the employee the opportunity to provide an explanation concerning the allegations made.

In addressing these questions, the Supreme Court made reference to article 1.1 of the Labour Code of Georgia, which provides that the “Labour Code regulates labour and subsequent relations on the territory of Georgia that are not otherwise regulated by an international treaty or a special law.” In light of this provision, the Supreme Court referred to the Termination of Employment Convention, 1982 (No. 158) and stated:

“Although this Convention is not ratified by Georgia, for interpretation purposes, special attention should be made to its requirements. In addition, […] labour legislation in Georgia does not contradict the requirements of the Convention and complies with [that Convention]. Namely, according to Article 4 [of the Convention], dismissal of an employee is permitted only when there is a valid reason for termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service. Moreover, in accordance with the Convention, it is prohibited to dismiss an employee for reasons related to their conduct or performance before they [the employee] are provided with an opportunity to defend themselves against the allegations made (Article 7). Additionally, Article 11 is also important, whereby an employee is entitled to a reasonable period of notice or compensation in lieu thereof, unless they are guilty of serious misconduct; that is, misconduct of such a nature that it would be unreasonable to require the employer to continue their employment during the notice period. Together with this Convention, the ILO Termination of Employment Recommendation, 1982 (No. 166), should be considered. This specifies the requirements set by the Convention and has a non-binding nature. According to this Recommendation, an employment contract shall not be terminated for misconduct of a kind that under national law or practice would justify termination only if repeated on one or more occasions, unless the employer has given the worker appropriate written warning (Article 7). According to the same Recommendation, an employment contract with an employee shall not be terminated for unsatisfactory performance, unless the employer has given the worker appropriate instructions and written warning and the worker continues to perform his duties unsatisfactorily after a reasonable period of time for improvement has elapsed (Article 8).

Therefore, considering the aforementioned provisions, it is obvious that in case of misconduct and/or unsatisfactory performance of occupational duties on the employee’s side, dismissal, as a heavy measure, shall not be used without observing certain procedural preconditions. Serious misconduct is the exception […]. This is the case, for example, when the damage caused by the employee to the enterprise is very serious […]. Cassation Chamber states that the Convention and Recommendation, referred here as an example, define the similar high standard for employees’ protection as it is determined by international treaties ratified in Georgia and citied in this Judgment”.

The Court, thus, concluded that absence from work (lasting just a few days), even without a valid reason, did not have the status of a qualifying criteria for termination of employment. Together with the fact of absence from work itself, it should also be determined what the impact of such misconduct on the employer had been. Consequently, the nature of work should be taken into account, and it should be evaluated whether it was reasonable to use the measure of dismissal without prior warning or giving the opportunity of explanation to the employee concerning the allegations made, and whether the measure taken (dismissal) was proportional to the degree of misconduct.

The Supreme Court also addressed the subject of the burden of proof regarding the justification of the termination and it interpreted Article 102 of the Civil Procedure Code of Georgia in light of Article 9(2)(a) of the ILO Convention No. 158. It concluded that both the claimant and the respondent should provide relevant proof of their positions.

Having established that the lower courts had not analysed and evaluated the factual circumstances of the matter, the Supreme Court of Georgia ruled to send the case back to the Tbilisi Court of Appeal, a decision based on the legal arguments the Supreme Court formulated and discussed in light of the ILO standards on termination of employment.