“Violations of rights and discrimination against teachers of retirement age have been going on for about three years. Now, the Constitutional Court has accepted the law’s fixed-term contract provision for retired teachers as discriminatory. This is a very important decision. ” Idea.
On February 7, 2023, the Constitutional Court of Ukraine declared that paragraph 2 of the second part of article 22 of the Ukrainian Law “On Full General Secondary Education” is unconstitutional. According to him, “teaching staff of state and municipal general secondary education institutions, Having reached retirement age and receiving an old-age pension, work based on employment contracts concluded for a period of one to three years “.
Such a norm became invalid from the date of adoption of the decision by the Constitutional Court of Ukraine.
As a general rule, the rule of law is recognized and should work in Ukraine. One of the elements of the rule of law, in particular, is the principle of legal certainty, which ensures that law, like any other act of the state, is characterized qualitatively in order to eliminate the risk of arbitrariness.
So, in 2019, the Verkhovna Rada adopted the bill No. 0901 “On full general secondary education” at the first reading. According to the 5th paragraph of the 2nd paragraph of the 22nd article, “It is proposed to employ the teaching staff who work in the state and municipal general secondary education institutions and who have reached the retirement age and paid an old-age pension based on the employment contracts concluded with them for a period of one to three years.”
Officially referring to the norms of the law, the authorities do not take the liberty of saying that contracts for pensioners are discriminatory, and unfortunately they will not use it.
Later, the bill was prepared for second reading with 553 amendments. In the last regulation made by the relevant commission, it was decided to remove this paragraph from the draft law. The withdrawal of this norm shows that everyone understands it. The transfer of pensioners to a form of contract includes signs of discrimination against workers by age. The age restriction regarding the continuation of duty of retired teachers with indefinite-term employment contracts puts citizens who fulfill the requirements of the professional legal entity equally into unequal legal conditions on the basis of age. This actually limits the guarantees of equal opportunity for the exercise of the constitutional right to work established by the Basic Law of Ukraine.
In the draft prepared for the second reading, the norm of the article on the employment of pedagogical workers who have reached retirement age under fixed-term employment contracts was withdrawn. The Education, Science and Innovation Committee recommended that the Verkhovna Rada of Ukraine adopt the proposed bill as a whole in the second reading.
However, as of January 14, 2020, from the content of the comments to the draft Law of Ukraine “On Full Secondary Education” (No. 0901) of the main legal department of the Verkhovna Rada of Ukraine, the main department was considered a completely different text of the draft. Somehow, the discriminatory norm returned to the text of the bill.
The age limit for retired teachers to remain in employment on indefinite contracts puts citizens in legally unequal conditions.
The adoption of the law by the Verkhovna Rada of Ukraine as a whole was in this discriminatory statement. Should we mention that the main legal department pointed out that the draft law needed careful finalization?
The European Court of Human Rights, in considering the “Risovsky v. Ukraine” case (judgment of 20 October 2011, final judgment of 20 January 2012), importance good governance. This principle assumes: public authorities should act as appropriately and consistently as possible. At the same time, they are obliged to implement internal procedures that will increase the transparency and clarity of their actions, minimize the risk of error and contribute to legal certainty in legal relations.
Unfortunately, this principle was not adhered to when adopting the Ukrainian Law “On Full General Secondary Education”. As a result, rights violations and discrimination against teachers of retirement age have been going on for nearly three years.
Decisions of the Constitutional Court of Ukraine are not normative acts, therefore this provision of the law, which was considered unconstitutional, became invalid simultaneously with the adoption of the decision of the Constitutional Court of Ukraine. Although the fact of unconstitutionality was before. Correction of errors in the adoption of laws is provided for in part 3 of Art. 152 of the Constitution of Ukraine where it is stated that The state may compensate the material and moral damage caused by the unconstitutional norm of law to retired teachers.with whom state and municipal educational institutions have signed fixed-term employment contracts.
The Law of Ukraine “On Basic Principles of Preventing and Combating Discrimination in Ukraine” provides: It is discrimination when a person or a group experiences restrictions on the recognition, implementation or use of rights and freedoms due to age.
Accordingly, upon the request of a retired teacher, he had the opportunity to legally defend his right to demand compensation for pecuniary and non-pecuniary damage before the relevant decision of the Constitutional Court was rendered. Although the provisions of the law should be accepted even if they are discriminatory and unconstitutional, It is virtually impossible to defend one’s rights at the level of law enforcement by both public officials and practitioners.
A striking example of this is the letter of the General Director of School Education of the Ministry of Education and Science of Ukraine on the Internet of February 28, 2020. In a letter to a citizen of Ukraine, it is explained that the law “Full Secondary Education” even defines a mechanism for the mandatory transfer of a retired teacher from an indefinite employment contract to a fixed-term contract for a period of 1 year. . If the employee refuses to extend the employment relationship under the provisions of a fixed-term employment contract, pedagogical employees for whom an old-age pension is paid are dismissed (according to article 9, part 1, article 36 of the Ukrainian Labor Code) .
Officially referring to the norms of the law, the authorities do not have the freedom to say that this is discrimination, and unfortunately they will not be.
But after the decision of the Constitutional Court of Ukraine, retired teachers who tried to protect their rights in court were dismissed, and if the courts refused to honor their reemployment request, they had a legal opportunity:
- review of an erroneous decision due to exceptional circumstances;
- dismissal as illegal and recovery of average earnings during compulsory absence.
That is, it is possible to recover average earnings from state and municipal general education institutions for the period of mandatory absence from the moment of illegal dismissal of a retired teacher to the day when the pensioner is returned to work by the court. Ukraine
Unfortunately, the mistakes of the authorities hurt both the people whose rights have been violated and the state, which has to compensate for the damage done.
Source: Focus
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