The
most common issue raised by complaints to the Defender in 2020 is the failure
to make a complete final payment or making an incomplete with the employee when
terminating the employment contract. The Defender regularly addresses this
issue in annual reports summarizing his work.
Thus,
according to the Labor Code of the Republic of Armenia, in case of termination
of the employment contract, the employer is obliged to make a final payment
with the employee on the day of termination of the employment contract, unless
otherwise provided by the Labor Code, the law or the consent of the employer
and the employee.
The
Human Rights Defender reaffirms the position taken as a result of the analysis
of the mentioned norm, according to which final payment with the employee when
terminating the employment contract is not the right but the duty of the
employers, while the possibility of envisaging another final payment procedure
with the consent of the employer and the employee refers not to the discretion
of the parties to make a final payment or not, but to the procedure for the
final payment, for example, the deadline.
It
should be clearly stated that the employer is entitled to limit the right to
make a final payment with the employee after the termination of the employment
contract. One of the specific manifestations of the mentioned issue is not
making a final payment with the employee at all when terminated the contract,
or making an incomplete final payment, or making it in violation of the
deadline set by law.
One
of the citizens who applied for the support of the Human Rights Defender in
2020 informed that they wanted to terminate the employment contract, but the
employer threatened not to make a final payment if the contract was terminated
on their own initiative.
During
such a manifestation of the issue, it should be noted that the labor
legislation does not provide any legal basis to make the absolute, imperative
legislative requirement to make the final payment conditional, restricting the
right of the employee to terminate the employment relationship.
In
one of the complaints addressed to the Defender, the woman informed that her
employment was terminated based on her application. The employer refuses to pay
a part of the final payment, in particular to pay compensation for the unused
days of leave. The issue during this concrete example was solved with the
assistance of the Human Rights Defender.
According
to Article 130(2) of the Labor Code of the Republic of Armenia, the employer is
obliged to pay the salary and other equivalent payments on the day of the final
payment. If it is not possible to fulfill this obligation for reasons beyond
the control of the employer, the employee's salary and other equivalent
payments shall be made within five working days after the employee submits such
a request.
The
appendix to the joint order No. 416-Ն on “Defining the list of salaries and
other equivalent” payments of the Ministry of Finance, the Ministry of Labor
and Social Affairs, and the State Revenue Committee of Armenia defines the list
of salaries and other equivalent payments, which also include the compensation
paid in return of the unused days of annual leave (minimal, extended, extra).
Regarding
the receipt of compensation for the unused days of vacation, the decision of
the Court of Cassation No. ԵԿԴ/3516/02/08 should be referred to, where the
Court of Cassation clarified that the compensation should be paid for all
unused days of the annual leave. According to the above-mentioned, the monetary
compensation for unused days of leave is part of the final payment, moreover,
the compensation for all unused days of leave is part of the final payment.
Therefore,
according to the position of the Human Rights Defender, it is always necessary
to maintain the requirements of the law, and to make the final payment
according to the provisions set by the labor legislation and time frame.
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