General Federation of employees of the National Electric Power Corporation (GENOP-DEI) and Confederation of Greek Civil Servants’ Trade Unions (ADEDY) against Greece, Complaint No. 65/2011
(Adopted by the Committee of Ministers on 5 February 2013
at the 1161st meeting of the Ministers' Deputies)
The Committee of Ministers,1
Having regard to Article 9 of the Additional Protocol to the European Social Charter providing for a system of collective complaints;
Taking into consideration the complaint lodged on 21 February 2011 by the General Federation of employees of the National Electric Power Corporation (GENOP-DEI) and Confederation of Greek Civil Servants’ Trade Unions (ADEDY) against Greece;
Having regard to the report transmitted by the European Committee of Social Rights containing its decision on the merits of the complaint, in which it concluded:
- violation of Article 4§4 of the 1961 Charter (unanimity)
The right to reasonable notice of termination of employment applies to all categories of employees, independently of their status/grade, including those employed on a non-standard basis. It also applies during the probationary period. National law must be broad enough to ensure that no workers are left unprotected.
The concept of “reasonable” notice has not been defined in abstracto. Situations are assessed on a case by case basis. The major criterion is length of service. For example, the following situation is considered to be not in conformity with the Charter: less than one month’s notice after one year of service.
The main purpose of giving a reasonable notice is to allow the person concerned a certain time to look for other work before his or her current employment ends, i.e. while he or she is still receiving wages. In this respect, receipt of wages in lieu of notice is acceptable, provided that the sum paid is equivalent to that which the worker would have earned during the corresponding period of notice.
The only acceptable justification for immediate dismissal is serious misconduct.
While it is legitimate for the concepts of probationary or trial periods to apply to enable employers to check that employees’ qualifications and, more generally, their conduct meet the requirements of the post they occupy, the concept should not be so broadly interpreted and the period it lasts should not be so long that guarantees concerning notice and severance pay are rendered ineffective.
However, in the instant case, Section 17§5 of Act No. 3899 of 17 December 2010 makes no provision for notice periods or severance pay in cases where an employment contract, which qualify as ‘permanent’ under the said law, is terminated during the probationary period set at one year by the same law.
Therefore, whatever the qualification that is given to the contract in question, the Committee concludes that Section 17§5 of Act No. 3899 of 17 December 2010 constitutes a violation of Article 4§4 of the 1961 Charter.
- non-application of Article 3§1a of the 1988 Additional Protocol to the 1961 Charter (by 14 votes to 1)
The conclusions on collective bargaining of the report on the high-level mission to Greece (Athens, 19-23 September 2011) of the International Labour Organization (ILO) have been taken into account. However, Article 3 of the 1988 Additional Protocol and, in particular, paragraph 1a, does not concern the right to collective bargaining.
The issue raised by the complainants falls within the scope of Articles 5 and 6 of the Charter – and not within that of Article 3§1a of the 1988 Protocol to the 1961 Charter – which have not been accepted by Greece.
Having regard to the information communicated by the Greek delegation during the meeting of the Rapporteur Group on Social and Health Questions (GR-SOC) of 25 October 2012,
1. takes note of the information provided by the respondent government on the follow-up to the decision of the European Committee of Social Rights (see Appendix to this resolution);
2. notes that the respondent government states that the measures constituting a violation of the 1961 Charter are of a provisional nature and that they will be revoked as soon as the economic situation of his country would allow;
3. calls for Greece to revoke the above-mentioned measures as soon as possible and keep the Committee of Ministers regularly informed of all progress made.
Appendix to Resolution CM/ResChS(2013)2
Reply by Greece to the conclusions of the European Committee of Social Rights (ECSR), submitted by the Representative of Greece at the GR-SOC meeting of 25 October 2012
(cf. document GR-SOC(2012)CB5 of 5 November 2012, §§12-13)
“12. The Greek delegation (…) stated that the Greek authorities did not contest the conclusions of the ECSR and accepted that the specific labour laws of 2010 in question were not in conformity with the Charter. The delegation pointed out that this situation had come about because of the financial vortex threatening the survival of its country’s economy. (...).
13. Against this background, the Greek delegation reiterated the fact that its government accepted the conclusions of the ECSR concerning the issues of non-conformity with the European Social Charter. Secondly, it pointed out that the measures were of a provisional nature. Thirdly, it stated that the Greek Government had the firm intention to revoke these measures as soon as the economic situation of his country would allow. However, in this respect, and with regard to the political and economic constraints, it was not possible to envisage a set timeframe, although it was unlikely that tangible results in Greece would be apparent before 2015. (…)”.
1 In accordance with Article 9 of the Additional Protocol to the European Social Charter providing for a system of collective complaints the following Contracting Parties to the European Social Charter or the revised European Social Charter have participated in the vote: Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Republic of Moldova, Montenegro, Netherlands, Norway, Poland, Portugal, Romania, Russian Federation, Serbia, Slovak Republic, Slovenia, Spain, Sweden, “the former Yugoslav Republic of Macedonia”, Turkey, Ukraine and United Kingdom.