Ratified treaties¹

Dismissal of a union delegate/ Protection against anti-union discrimination/ Absence of authorization by the labour inspector/ Determination of the status of union delegate/ Direct resolution of a dispute on the basis of international law

Ms Ly Kovanen, who was a union delegate in an administration, had been dismissed. The employer had terminated her employment without going through the procedure of obtaining authorization from the labour inspector. The legal problem stemmed from the fact that Ms Kovanen’s administration considered that she was not an employees’ representative, because the day the applicant had been elected to office as a union delegate her union did not have any statutes and her election was not included in the official minutes. The question of whether the dismissal without authorization by the labour inspector was legal or not depended on establishing whether or not Ms Kovanen had the capacity of employees’ representative.

The Administrative Division of the Tallinn District Court stated in its decision that the fact that Ms Kovanen had been denied the status of delegate was unjustified and that the recognition of the status of protected worker should not be made conditional on the scrupulous examination of administrative formalities but depended on the effective performance of the duties of staff representative.

The Administrative Court based its decision directly on international law:

 “This consideration would not be in conformity with section 29² of the Constitution of the Republic of Estonia and relevant international instruments that give employees additional guarantees in realizing their freedom of association.

According to Article 2 of the ILO Convention No. 87 (ratified by the Republic of Estonia on 22 September 1993) the employers and employees are entitled to form and join organizations without previous authorization on their own choosing without any exemptions according to the rules of the organization concerned.

In line with Article 3 of the aforementioned Convention the described organizations are entitled to elaborate their own rules and choose freely their representatives.

Article 3 of the ILO Convention No. 135 establishes that for the purposes of the Convention the representatives of employers are persons who are acknowledged as employees’ representatives by the laws or practice of the State concerned and who may be representatives of the trade unions.

Article 1 of the said Convention states that the mentioned representatives will be protected against any harmful activity, inter alia against dismissal.”

On this basis, the Tallinn District Court then found that the applicant was in fact recognized as the representative of her union both by her administration and by her union. In order to establish this, the Court relied in particular on the correspondence between Ms Kovanen’s administration and the union and concluded that the protection provided for trade union representatives should be applied to the applicant, since she was effectively performing the duties of that office. The dismissal that had been carried out without the authorization of the labour inspector was thus illegal. The Court based this decision directly on the rules laid down in the two ILO Conventions mentioned above. It did not reinstate Ms Kovanen in her job, since she did not wish to be reinstated, but it awarded her financial compensation.