a) Armenia / b) Constitutional Court / c) / d) 24-02-2009 / e) DCC-792 / f) On the conformity with the Constitution of Articles 113.1.9 and 114.4.5 of the Labour Code / g) To be published in Tegekagir (Official Gazette) / h) .
Keywords of the Systematic Thesaurus:
General Principles - Rule of law.
Fundamental Rights - Equality - Scope of application - Employment - In private law.
Fundamental Rights - Economic, social and cultural rights - Right to work.
Keywords of the alphabetical index:
Freedom of choice of employment prescribed in Article 32 of the Constitution affords everybody the opportunity for free expression of their professional and other capacities and entry into the workforce without discrimination.
Conditions such as appropriateness or other subjective factors should not be imposed on employers' rights to dissolve employment contracts. Instead, the implementation of such a right should follow a fair, definite and lawful aim in accordance with the constitutionally prescribed principles of the right to work.
The judge at the general jurisdiction court lodged an application with the Constitutional Court challenging various provisions of the Labour Code, the application of which arose during a specific case. The provisions in question allow early dissolution of employment contracts where the employee has reached pension age - this being 65 for the purposes of the Code. The applicant raised concern that such a legal regulation violates the constitutional principle of equality before the law, which forbids discrimination on the basis of the age or personal, social or other circumstances.
The Constitutional Court stated that freedom of choice of employment prescribed in Article 32 of the Constitution affords everybody the opportunity for free expression of their professional and other capacities and entry into the workforce without discrimination.
Freedom of choice of employment is conditional upon the availability of distinct legislative guarantees surrounding the formation and termination of employment contracts, on the basis of bilateral expression of will, which are necessary for the realisation of the individual's right prescribed in Article 32.1 of the Constitution, and the development of free and comprehensive market relations of management in accordance with the principle prescribed in Article 8.2 of the Constitution.
Employment contracts are formed on the basis of the free expression of will; consequently, parties to these contracts are free to end them. The contractual nature of the regulation of labour relations demands not only the realisation of the right, but also the necessity to implement duties. The implementation of the right of the parties (especially that of the employer) to terminate a employment contract should not be made conditional on appropriateness or other subjective factors. Rather, it should follow fair, lawful and definitive goals, in accordance with the constitutionally prescribed principles of the realisation of the right to work.
Pursuant to Article 3.2 of the Constitution, the state shall ensure the protection of fundamental human and civil rights and freedoms in accordance with the principles and norms of international law.
In view of the international experience of free, non-discriminatory choice of employment and the realisation of this right, the Constitutional Court stated that any discrimination (including that on the grounds of age), or illegal restrictions of freedom of employment in domestic legislative practice contravene the fundamental principles of the democratic and social state, based on the rule of law.