Non-ratified treaty;¹ Instrument not subject to ratification;² Work of international supervisory bodies³

Dismissal based on employee misconduct/ Use of international law as a guide for interpreting domestic law

G. Z. held the position of train driver and K.G. was the assistant to the train driver. The employer had terminated the claimants’ employment contracts based on the grounds of employee misconduct. The employer alleged that, on 27 March 2012, during a high-speed mechanical operation of the train, the claimants failed to apply a brake and that the train was forced to a stop at the railway station only after a special notification to the employees from station staff. Tbilisi City Court and Tbilisi Court of Appeal rejected G. Z. and K. G.’s claim seeking reinstatement and compensation of lost income. Both courts ruled that, in accordance with the job description of the claimants, G. Z. and K. G. were in charge of and responsible for driving the train, as well as its mechanical operation, train speed and all train handling. Examining the evidence available, the Tbilisi Court of Appeal determined that, despite their obligation, as per the admission of the claimants themselves, the employees did not pay special attention and failed to react properly when the train passed over some wooden sticks located on the railway track; the braking system went out of order when the train passed over the wooden sticks and both claimants failed to use the handbrake as they negligently presumed that the handbrake would be applied by the train-driver instructor.

The Tbilisi Court of Appeal interpreted article 37.g of the Labour Code, which provides that an employment contract can be terminated based on the violation of work obligations, in light of ILO Termination of Employment Convention, 1982 (No. 158). The Court explained that, according to Article 4 of the Convention, valid grounds for dismissal shall be connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service. The Court added that in qualifying the valid grounds, special attention should be paid to the comments of the ILO Committee of Experts on the Application of Conventions and Recommendations. Although these comments have non-binding nature, they interpret the text of the Convention and its scope of application, and can be considered as a source of inspiration for the legislators and the courts. In the 1995 General Survey of the ILO Committee of Experts,⁴ the concept of “misconduct” includes two categories: 1) inadequate performance of job duties by the employee (improper professional conduct); 2) improper behavior. “Inadequate performance of job duties” may imply neglect of duty; violation of work duties; disobedience of legitimate orders of the employer; absence of lateness without good cause. The above listed situations can constitute legitimate grounds for dismissal. Therefore, the Court of Appeal had to decide whether the claimants’ conduct constituted sufficiently serious misconduct and, in turn, a valid reason for dismissal. The Court concluded that the complainants’ action on the one hand (passing over the wooden sticks located on the railway track), and inaction on the other (failure to use the handbrake), had put the lives of passengers at risk. Consequently, the train driver and his assistant had violated their work duties to such a degree as to constitute reasonable and legitimate grounds for dismissal, as based on domestic legislation, as interpreted in light of Article 4 of ILO Convention No. 158 and the pronouncements of the ILO Committee of Experts.