On 20 February, the Court of Cassation published the decision regarding the lawsuit filed by Aram Mikayelyan against the “National Polytechnic University of Armenia” Foundation.
To remind, Aram Mikayelyan applied to the First Instance Court and demanded to invalidate the order of the Rector of the NPUA Gor Vardanyan on his dismissal, to restore him to his previous jobs, as well as confiscate the average salary for the entire period of forced idleness, starting from 17 June, 2022.
According to Iravaban.net , the First Instance Court invalidated the order of Gor Vardanyan, the Rector of NPUA, and obliged to pay Aram Mikayelyan compensation for not restoring the employee to work, in the amount of five times of the average salary, as well as the amount of forced downtime. The Court Appeals rejected the defendant’s appeal and upheld Aram Mikayelyan’s. In addition, the Court overturned the decision partially, not to restore Aram Mikayelyan to his previous job, as well as the Court costs calculated for that claim, and sent the case to the same Court for a new examination in its entirety.
The National Polytechnic University of Armenia appealed to the Court of Cassation in this case. It is noted that no response to the appeal was submitted.
The Court found that under such conditions, the expression of a critical or accusatory position, especially by a person performing educational functions, should be as free as possible from insulting or slanderous comments, which results from the behavior (loyalty), restraint, trust and mutual respect between the employer and the employee in the work relationship, from the need for maintenance, as well as from the imperative to ensure behavior compatible with the implementation of educational functions.
The respondent claims that the Court of Appeal ignored that the judgment was not sufficiently justified and reasoned, because the Court, mechanically reproducing part of the content of the disputed order, did not in any way refer to, assess and clearly identify the functions performed by Aram Mikayelyan and their educational nature, which is the primary and essential condition for determining the incompatibility of the act performed with it.
“…The Court of Appeals did not take into account the arguments of the appellate complaint regarding the employer being a higher education institution and having certain responsibilities towards students, which are reflected in the regulations of the RA Law “On Education” and the RA Law “On Higher and Post-Graduate Professional Education”, and limited is only a very superficial record of employer-employee relations.
The Court of Appeals also ignored that the right to freedom of speech is not an unlimited right and in each case the restriction of the right to freedom of speech must be evaluated in the context of compatibility with the implementation of the relevant work as an educational function. The Court of Appeals, disregarding the arguments of the appellate complaint, did not fully and completely examine the evidence presented in the case and did not evaluate them in combination, as a result of which it made one-sided evaluations of facts and evidence, and as a result of which the principles of competition and equality of rights in the trial were violated,” stated the defendant, initially npting that the claim is completely groundless and subject to rejection.
It was noted that Aram Mikayelyan, while carrying out educational functions at the university, allowed actions incompatible with continuing the given work, in particular, on his Facebook page and on the Aravot.am news site, he regularly made groundless and name-calling statements that harmed the University’s reputation and its business reputation.
On these grounds, the Rector of the University, Gor Vardanyan, signed an order by which the employment contracts signed with Aram Mikayelyan were terminated.
Within the framework of the appeal, the Court of Cassation considered it necessary to refer to the performance of such an act incompatible with his functions by the employee performing educational functions, which could be the basis for terminating the employment contract at the initiative of the employer, developing the previously expressed legal positions.
According to Article 122, Clause 2 of the Labor Code The employer has the right to terminate the employment contract with the employee towards whom the confidence is lost on the basis envisaged by clause 7 of section 1 of article 113 of this code if (…) the employee performing educational functions fails to perform or performs incompletely his duties.
The Court of Cassation, referring to the analysis of the above-mentioned legal norms of the Labor Code in its previous decision, noted that the employer has the right to terminate the employment contract on his own initiative before the expiry of its validity period, if the following conditions are present at the same time:
- the employee is a person performing educational functions, and
- the employee has committed an act incompatible with continuing the relevant work.
The Court of Cassation has also expressed a legal position that the loss of the employer’s trust in the employee should, in fact, be due to the fact of committing an act incompatible with continuing educational functions. Moreover, from the point of view of the legislative regulation, to terminate the employment contract based on the loss of trust in the employee performing educational functions, the only necessary prerequisite is the incompatibility of the employee’s act with his work, and the manifestation of the act in the form of a violation of labor discipline has no legal value.
“…The parties to the employment relationship throughout the duration of the relationship may have a legitimate expectation (vision) that the other party to the relationship will act lawfully, conscientiously and reasonably, taking only actions that are lawful and reasonable, will not harm his interests, honor, dignity and good reputation.
The Court of Cassation considers that termination of the employment relationship on the basis of loss of trust can be considered in the case of the performance of such works, which in their nature are based on a reasonably assumed special connection and trust between the employer and the employee, that the employee will, under certain circumstances, act in a reasonably predictable and lawful manner, behavior towards the employer (loyalty), prudence and conscientiousness, contributing to the stability and efficiency of working relations.
We are talking about such a prerequisite for the origin of labor legal relations, in the absence of which such work would not be entrusted to the given employee, and in the event of its disappearance, the employer is unconditionally deprived of what he had the right to expect when concluding the employment contract.
The loss of trust in the employee, which is the result of the employee committing an act incompatible with his work, should be considered as such a significant change in circumstances that, if there was a possibility of reasonably predicting, an employment contract with significantly different conditions would have been signed between the parties or it would not have been signed at all,” the Court mentions in its decision.
The Court of Cassation recorded that the circumstance of being in an employment relationship cannot in itself be considered a sufficient basis for restricting the employee’s right to freely express his opinion about the employer or the organization, including critical and accusatory opinion. At the same time, in the light of the above-mentioned positions of the European Court, the Court of Cassation stated that based on the imperative to maintain the principles of behavior (loyalty), restraint and prudence by the employee in labor relations, especially in structures of great importance and social significance in the general public, such as educational institutions, educational functions critical and accusatory expressions made by the implementing employee should not be of such a degree and should not bear such a form of expression that will directly lead to defamation of the authority, honor, dignity and good faith of the given structure, its management bodies, as well as other persons working in that institution, graduates and students.
The Court of Cassation records that the circumstance of being in an employment relationship in itself cannot be considered a sufficient basis for restricting the employee’s right to freely express his opinion about the employer or the organization, including critical and accusatory opinion. At the same time, in the light of the above-mentioned positions of the European Court, the Court of Cassation states that based on the imperative to maintain the principles of behavior (loyalty), restraint and prudence by the employee in labor relations, especially in structures of great importance and social importance in the general public, such as educational institutions, educational functions critical and accusatory expressions made by the implementing employee should not be of such a degree and should not bear such a form of expression that will directly lead to the defamation of authority, honor, dignity and good faith of the given structure, its management bodies, as well as other persons working in that institution, graduates and students.
The Court of Cassation, assessing the facts of essential importance for the examination of the cassation complaint in the context of the above-mentioned positions, recorded that the case materials confirmed critical judgments by Aram Mikayelyan both publicly and among the foundation’s employees and students regarding the management of the university, faculty members, and student structures; the fact of voicing, which were often combined with insulting and allegedly defamatory expressions and had a periodic nature.
“…According to the assessment of the Court of Cassation, such a form of expression causes real damage to the reputation of the given university, the honor, dignity and reputation of the professors carrying out scientific and educational activities there and the students and graduates receiving education.
Such comments can form a misconception in the society about the role, goals and influence of the educational institution, especially if it is carried out by an employee of that institution,” the Court recorded.
The Court of Cassation noted that it is obvious that the accusatory and insulting positions expressed by Aram Mikayelyan regarding the Rector of the Foundation, a number of employees, as well as student structures were expressed in such a way that could objectively affect both the Foundation and other persons connected with the latter and on the authority of structures.
In addition, the Court found that most of the expressions and insults made by Aram Mikayelyan were aimed at the Rector of the Foundation, Gor Vardanyan, and his “supporters”. “…At the same time, the substantive research and evaluation of publications made on social networks and in the press shows that the circumstance of Gor Vardanyan’s appointment to the post of Rector was not acceptable by Aram Mikayelyan, and caused the latter’s displeasure.”
Thus, the respondent’s cassation appeal was satisfied. The decision of the Civil Court of Appeals was annulled, Aram Mikayelyan’s claim was rejected.
The decision takes legal effect from the moment it is made, is final and is not subject to appeal.
