What can I do if I am wrongfully terminated?

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When an employee is unlawfully terminated, they can file a wrongful termination lawsuit against their employer. The employee can seek reinstatement in the same position and payment of his lost average salary from the moment of termination up until the moment of reinstatement. If the reinstatement is impossible because of economic, technical, organizational reasons or due to the impossibility to restore the relationship between the employee and employer, the court may order compensation to the employee in the amount equal to his 1-12 months average salary.

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Which court has jurisdiction over employment disputes?

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As a general rule, the claim is filed with the court that has jurisdiction over the employer’s address. Parties may enter into an arbitration agreement or change the territorial jurisdiction of their dispute. Meanwhile, an arbitration agreement does not deprive the employee of the right to submit the dispute to the appropriate court of general jurisdiction unless the arbitration agreement was signed after the dispute had arisen.

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How much is the court fee for filing an employment claim?

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There is no court fee for filing an employment claim.

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What is the statute of limitations in employment disputes?

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Just as in typical civil disputes, the general limitation period for bringing an employment claim is 3 years. However, wrongful termination claims can be filed within 2 months after the receipt of the termination letter. The statute of limitations does not apply to the claims of unpaid salary as well as claims for compensation for the damage caused to life, health, honor or dignity of the employee. This means that a claim regarding those matters can be submitted and examined irrespective of how much time has passed since the alleged violation and the employer cannot have the case dismissed by citing the passage of the statute of limitations.

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How long does the trial take?

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According to the Code of Civil procedure, employment disputes must be tried within 3 months after the submission of the claim. However, this time period is often breached due to the workload of judges.

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Who has the burden of proof?

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The employer has the obligation to prove both the grounds underlying his decision and his compliance with the relevant procedural rules for termination. This means that if the employer is unable to produce convincing evidence proving the facts underlying his decision or his compliance with the relevant procedural rules, the employee’s claim is likely to be granted. Moreover, when the court accepts a wrongful termination claim for examination, it simultaneously sends the employer a decision to submit all the relevant evidence concerning the termination. Such evidence must be presented by the employer within one week following the receipt of the court’s decision unless the employer proves the impossibility of doing so for reasons that were beyond his control.

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What if I had a fixed-term contract?

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If a fixed-term contract expires the parties are free to decide whether or not to renew it. However, it is important to note that, as a general rule, fixed-term employment contracts are only allowed when a permanent contract (a contract with not predetermined end date) is impossible given the nature of the work or its terms of performance. If that is not the case (i.e. if a permanent contract was possible in those circumstances) the court will disregard the term of the contract and view it as permanent (Article 95 para. 1 of the Labor Code of Armenia and decision No. 3-321(ՎԴ)-Ի of the court of Cassation of Armenia). Furthermore, when a genuine fixed-term contract is not terminated in accordance with the procedure prescribed by Article 111 of the Labor Code and the employment relations continue, the fixed-term contract becomes permanent. 

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What if I did not have a written employment contract?

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According to the Labor Code, employment relations arise out of an employment contract or the employer’s notice of hiring (job order). However, undocumented employees (employees who carry out work without a written employment contract) are also able to prove their employment status if they can produce sufficient evidence (documents, wire transfers, correspondence, etc., witness testimony is inadmissible) that they actually performed work for the employer.

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What if I was hired as an independent contractor?

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Hiring independent contractors is a common practice in Armenia. Even though guarantees of the labor legislation do not apply to independent contractors, it is important to note that if the nature of the relations was in fact employment, the rules of the Labor Code will apply even if the contract provides otherwise (Article 7 part 6 of the Labor Code). Although there is no clear distinction between an employee and an independent contractor, some criteria to consider are the payment and work schedules of the service provider, tools and equipment used, the existence of instructions and disciplinary rules, and so forth.

 

Do regulations of the Labor Code extend to public officials and public servants?

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The regulations of the RA Labor Code apply in relation to public officials and public servants so long as there are no specific rules in separate laws that govern the respective area.

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Do guarantees of the labor code extend to CEOs of private companies?

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Oftentimes, employment contracts are signed between a chief executive officer (director) of a private company and its shareholders. Even though these agreements possess certain elements of an employment contract, they are distinct in nature. Therefore, guarantees of the labor code, including those concerning termination, do not fully extend to CEOs. Thus, shareholders have more flexibility to terminate the contract. (The Court of Cassation addressed that issue in THIS DECISION).

 

What if my employer had me sign my letter of resignation at the time of hiring?

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There have been instances when employers demanded a signed letter of resignation from their employees in advance so that they could simply fill in the date as soon as they wanted to fire a certain employee without having to comply with the labor legislation. An employee who became a victim of such abuse may seek an expert examination of the document which can reveal with some level of accuracy the time period when the letter of resignation was drafted.

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What if I am in a probation period?

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The probation period lasts up to 3 months and in cases provided for by the law, it can be as long as 6 months. While employees enjoy almost all of their rights during probation, the employer is entitled to evaluate their performance and decide whether or not they are suitable for the position. During probation, the employer has the right to terminate the employment contract with a three-day notice.

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What are the grounds of termination?

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The Labor Code of Armenia (Chapter 15) provides an exhaustive list of grounds for the employer to terminate employment on their sole own initiative (without the consent of the employee). Employers can, on their own initiative, terminate a permanent (with no specified term) employment contract or a fixed-term contract before it expires only on the basis of the following grounds:

1. Dissolution of the employer (or termination of a sole proprietorship). Two-months advance notice is required.

2. Reduction of staff or vacancies caused by shrinkage of production volumes (as clarified by a DECISION of the Court of Cassation, shrinkage of production volumes alone is not by itself sufficient if it is not combined with staff or vacancy reductions) Two-months advance notice is required.

3. The employee is not suitable for the job due to professional reasons or prolonged health situation (as clarified by a DECISION of the Court of Cassation, the employer does not enjoy an absolute discretion to decide whether or not the employee is suitable for the position. Employer’s discretion is restricted by the terms and conditions of employment prescribed in the employment contract as well as by the rights of the employee). 14-60-day advance notice is required (depending on how long the employee worked in the job).

4. Reinstatement of the employee in his previous position

5. Repeated instances of not performing employee obligations (in this case the employee must have two prior non-extinguished disciplinary penalties)

6. Loss of trust in the employee (due to damage caused to the employee when dealing with finances or products, behavior that is incompatible with the employee’s pedagogical role, or revelation of state, professional or trade secrets)

7. A protracted disability that lasts more than 120 consecutive days or 140 days in total during a 12-month period (unless the law provides that in a certain special case the position is reserved for a longer period). 14-60-day advance notice is required (depending on how long the employee worked in the job).

8. Showing up in the workplace in an intoxicated state

9. Unjustified absence from work during an entire working day (shift)

10. Refusal or avoidance to undergo a mandatory medical check-up

11. Reaching retirement age, if the employment contract provides for such a ground. 14-60-day advance notice is required (depending on how long the employee worked in the job).

 

When are employers not allowed to terminate the contract?

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Employers under no-circumstances are allowed to terminate the contract when the employee:

1. is temporarily disabled (unless the disability lasts more than 120 consecutive days or 140 days in total during a 12-month period)

2. is on leave

3. is pregnant (from the moment the woman presents the pregnancy verification form issued by a doctor up until the end of the one-month period following the maternal leave)

4. is (who is not on parental leave) caring for a child under the age of one (several exceptions apply)

5. participates in a strike

6. performs duties imposed by state or local self-government bodies

 

Does the employer have to notify in advance about termination?

 

Advance notice is required depending on the specific ground of termination. For convenience, we mentioned the advance notice requirement next to each of the above-mentioned grounds requiring advance notice.

 

What are the grounds for annulling a termination decision by a court?

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The court will most likely annul a termination letter if the employer fails to prove the grounds for their decision. Furthermore, there are two unequivocal grounds for the court to annul the termination and reinstate the employee. Failure by the employer to specify either legal or factual grounds in the notice of termination is an unequivocal ground for the court to annul it (Article 214 of the Code of Civil Procedure). A notice of termination must contain both the legal and factual grounds for termination. The second unequivocal case is the breach, on the employer’s part, of the disciplinary procedure or the procedure for terminating or amending the employment contract. One of the most common examples of the former is when the employer does not request a written explanation from the employer regarding a disciplinary violation or once having requested that, does not give reasonable time to respond.

 

What if I have been dismissed but I have not received the notice of termination?

 

The termination becomes effective only after properly notifying the employee. This means that in cases when the employer terminated the contract but has not officially notified the employee, the latter can effectively retain his right to compensation until a proper notice is served (see the DECISION of the Court of Cassation).

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