Illegal dismissals in the civil service: Rights restored through court
Since 2012, TI Georgia has been providing free legal assistance to dismissed civil servants. During this time, our lawyers have won more than 60 cases in various court instances, resulting in up to 40 people being reinstated to their previous positions. This blog post briefly describes a few cases of interest, where illegally dismissed civil servants were able to restore their labor rights with assistance from TI Georgia.
The severity of the problem
Staffing changes in the civil service following the October 1, 2012 parliamentary elections has become and continues to be a topic of concern for the general public. Our report of March 2013 revealed that more than 5 thousand employees had been dismissed from the central and local government bodies during a period of 6 months after parliamentary elections. 45% of the dismissed (2,330) had submitted their own resignation letters, which raised a reasonable doubt that in many cases public employees did not voluntarily leave their positions.
Even though the Parliament passed a law in March 2013 toughening the punishment for coercing a staff member into submitting a letter of resignation, this malpractice continues even after the 2014 local government elections. For example, according to International Society for Fair Elections and Democracy (ISFED), in the period between August 1 and September 7 after the 2014 local government elections, Tbilisi City Hall dismissed 155 employees, out of which 115 submitted their own letters of resignation. Non-governmental organizations condemned these seemingly politically motivated dismissals and called relevant authorities to action. Problems related to disclosure and transparency were also observed during the employee selection-certification stage, were our representatives were denied participation in relevant commissions and were only allowed to observe job interviews. None of the municipalities allowed for audio and video recordings to be made during job interviews, which created additional risks for discrimination and unfair treatment of job applicants.
The Supreme Court also mentioned problems related to staffing policy in the civil service in its decision concerning the illegal dismissal of a Kareli Municipality Administration employee:
“The change of administration in Georgian public institutions is often followed by mass resignations of their employees.” According to the court, “the examination of the civil service reveals that nepotism and use of political positions for corruption and partisan purposes is yet to be overcome in Georgia”.
A legislative initiative recently prepared by TI Georgia aims specifically at creating effective mechanisms for combating nepotism. The initiative envisions adding an article about nepotism to the Criminal Code specifying what constitutes this crime. We believe this change to be appropriate based on the urgency of the problem. Unfortunately, the Parliament did not support our initiative, because it considers the current wording of the Criminal Code to be sufficient for combating nepotism. TI Georgia intends to continue advocating for the changes needed to prevent nepotism.
Successfully Completed Court Cases
Dismissals based on letters of resignation
In January 2013, two chief specialists of the Social Service Department at the Zestaponi Municipality Administration were deceived into submitting letters of resignation. After a meeting with the governor the department head summoned all civil servants and requested everyone submit letters of resignation due to an ongoing reorganization. The department head reassured the employees that the letters were a simple formality, and that this move from their part would further motivate the municipality administration to keep all of them on their positions.
Even though the plaintiffs had willingly submitted letters of resignation to their immediate supervisor, the presented evidence confirmed that the civil servants were deliberately misled, providing the court with sufficient basis to declare the order of their dismissal as illegal. The municipality appealed the court’s decision to the Court of Appeals as well as the Supreme Court, both of which upheld the decision made by the first instance court. After administrative proceedings both civil servants were reappointed to their previous positions.
Dismissals with the pretext of reorganization
According to the Labor Code, the dismissal of an employee during reorganization is acceptable only in case of staff reduction. The widespread practice in Georgia, however, is to use reorganization as a pretext to dismiss civil servants, even without a resulting staff reduction. In these instances, reorganization is a formality used by the administration to dismiss undesirable employees.
During 2013, TI Georgia’s lawyers provided legal representation to 9 civil servants dismissed from Kutaisi City Hall during reorganization. The court found that the dismissals were conducted with procedural violations - the reorganization did not result in staff reduction and no relevant administrative proceedings were undertaken. As a result, the court declared the dismissal of 8 out of 9 civil servants as illegal. The city hall appealed the decision to higher instance courts, but the decision was upheld and 8 employees were reappointed to their previous positions.
In December 2014, three employees of the Department of Veteran Affairs at the Ministry of Defense were dismissed during reorganization. As a result of legal aid provided by TI Georgia, the city court declared the dismissals of all three employees as illegal. The Ministry of Defense appealed the decision to the Court of Appeals. Two employees were reappointed to their previous positions after achieving a settlement with the ministry during the appeals process. The case of the remaining employee is in progress.
In 2014, two employees were dismissed from the Border Police of the Ministry of Internal Affairs during reorganization. During court proceedings the ministry representatives were unable to provide evidence for staff reduction due to reorganization. Therefore, the court fully granted the claims of both employees, reappointed them to their previous positions and obligated the ministry to compensate lost wages.
The case of Kutaisi deputy mayor
We also examined the dismissal cases of two deputy mayors of Kutaisi - Amiran Dzotsenidze and Kote Ratiani. These employees were dismissed based on alleged grave violation of official duties. In both cases, however, the court dismissed the city hall’s accusations and annulled the disputed legal act. Kutaisi city hall appealed Dzotsenidze’s case to the Court of Appeals as well as the Supreme Court, both of which upheld the decision and obligated the city hall to reappoint Dzotsenidze to his previous positions and pay him compensation for lost wages.
The case of Kakha Machitidze: dismissed twice in three months
Of special interest was the case of Kakha Machitidze, former head of Kutaisi City Hall’s Fire Safety and Rescue Service, who was dismissed from his position two times within a period of three months.
Initially, Machitidze was dismissed in June 2013 during reorganization. The Kutaisi City Court ruled in favor of Machitidze and obligated the city hall to reappoint him to his previous position. The decision was upheld by the Court of Appeals as well as the Supreme Court. Machitidze’s reappointment was made possible on September 16 after we addressed the Enforcement Bureau. However, soon after, on November 1, Kutaisi City Hall dismissed Machitidze yet again. This time, Kutaisi City Court ruled against Machitidze. The Court of Appeals, however, granted our claim related to the legality of the dismissal and once again found the Kutaisi Mayor’s first and second orders to dismiss Machitidze as illegal.
Illegal decisions made by staff selection commissions
In 2015, 25 cases have been filed to the first instance court with TI Georgia’s legal representation. In 3 of these cases, the court has already found violations committed by staff selection commissions.
In one lawsuit prepared by TI Georgia, the court annulled two decisions made by the Akhalgori Municipality civil servant selection-certification commission.
TI Georgia was representing the interests of Nugzar Gabrielashvili and Soso Tsinamdzghvrishvili. In December 2014, the plaintiffs filed their applications for job openings announced by the Akhalgori Municipality. Even though the two candidates successfully completed both stages of the selection process – examination and interview – the selection commission turned both candidates down without substantiating the decision.
By partially granting our claim, the Mtskheta District Court set a precedent that a court can examine the legality of decisions made by a permanent selection-certification commission despite its broad discretion. Precedents like this will help prevent cases of violation of job candidate rights through unsubstantiated decisions.
Tinatin Guledani had served at Mestia Municipality for over 30 years. Most recently she was the assistant to the chairman of Mestia Municipality Council.
In January 2015, after Mestia Municipality Council and Administration announced vacancies for all of their positions, Guledani filed her application for three positions: assistant to the chairman of Mestia Municipality Council; head of the Department of Economic Planning and Statistics at Mestia Municipality Administration; and head of the Department of Property Management at Mestia Municipality Administration.
Guledani successfully passed the first two stages of the selection process and even scored the highest - 52 points on the examination. The selection-certification commission, however, turned her candidacy down, which resulted in Guledani losing her job as the assistant to the chairman of the council.
Tinatin Guledani first appealed the decision to the Complaints Commission of the Mestia Municipality Selection-Certification Commission, and later took the case to court with the help of TI Georgia 's Zugdidi Office.
On June 16, 2015, Zugdidi District Court granted Tinatin Guledani’s claim, annulled the portion of the decisions made by the Selection and Complaints Commissions that concerned Tinatin Guledani, annulled the appointment orders for the above-mentioned positions and the order of Guledani’s dismissal, and obligated the selection commission to re-conduct the third stage of selection and make a fair decision.
Informing civil servants of their rights
TI Georgia continues to provide free legal aid to illegally dismissed civil servants. Our Legal Aid Center is working on dozens of new cases and helps citizens restore their rights. In addition, several TV channels regularly air our videos concerning labor rights violations and nepotism in the civil service. In the videos we call on citizens with these problems to seek our free legal aid.
In March 2015, we organized a meeting with the people who thought they had been treated unfairly while applying for jobs at local government bodies after September 1, 2014. At the meeting citizens expressed their views on the staff selection and certification processes. Complaints were voiced against the selection commissions and the legislation. The participants also discussed their vision for solving these problems. TI Georgia provides legal representation to a number of citizens that had attended the meeting.
Despite these successes, winning lawsuits on its own cannot solve existing problems of the civil service. In order to do this, the government must show a clearly expressed will that the goals and principles of the Law on Civil Service and the Civil Service Reform Concept will be strictly observed. These goals and principles include: the rule of law, non-partisan civil service, stability of staff, openness and transparency, accountability, and efficiency.
We call on:
- The government – to express a clear and unambiguous political will supporting the preservation and sustainable development of institutional memory in the civil service, and to condemn any attempt to politicize it.
- The central and local government bodies – to promote a healthy environment in the civil service, where labor rights of civil servants are protected and political discrimination is eliminated.
- The law enforcement agencies – to take interest in cases of violation of the labor legislation.
- The Civil Service Bureau – to develop and present the Parliament with additional mechanisms for preventing and eliminating nepotism in the civil service.