Cyprus: Employment Tribunal Confirms Applicability Of Law 98(I)/2003 For Public Employees

The Fixed-Term Employees (Prohibition on Discrimination) Law (98(I)/2003) and the EU Fixed- Term Employment Directive (1999/70/EC) apply equally to indefinite and permanent contracts of public and private sector employees and the judicial remedies in the event of illegality on the part of an employer must be fair and equitable.

Facts

Applicant 1 and Applicant 2 were employed as actors by the Cyprus Theatre Organisation (CTO) from 1996 to 2001, respectively. Both applicants were hired under one-year fixed-term contracts which were automatically renewed annually before their expiration without interruption until their employment was terminated on September 30 2012. The reason given for the termination of employment was that the CTO had decided not to renew their fixed-term employment contracts for another year.

The applicants filed a claim with the Court of Industrial Disputes, claiming reinstatement under the terms and conditions set out in Law 98(I)/2003 or, alternatively, compensation for unlawful dismissal.

The applicants argued that under Article 7 of Law 98(I)/2003, their employment had become permanent, as they had been employed on fixed-term contracts for over 30 months. As such, their contracts should have for all purposes been regarded as permanent. Further, the applicants argued that any provision in their contracts that limited the duration of their employment was inapplicable, unless the employer could prove that a fixed-term employment contract was justified by objective reasons.

With reference to the recruitment process to employ actors, the CTO rejected the applicants' argument and contended that there were objective grounds associated with the acting profession which justified the limited duration of the applicants' employment contracts.

Issues

In making its decision, the court examined whether:

  • the applicants' employment was governed by public or private law; and
  • Law 98(I)/2003 is applicable to public and private sector employees. As regards compensation awarded, the court had to decide whether:
  • the applicants' period of service ran from their hiring date or from July 25 2003 (ie, the date on which the law came into force); and
  • the court was justified in exercising its discretion to award aggregated damages.

With regard to the employment period, the applicants' counsel argued that their period of employment started on the date on which they were first employed, as Law 98(I)/2003 was introduced to supplement rather than abolish the existing legal regime. It was further argued that Law 98(I)/2003's implementation and harmonisation with the EU Fixed-Term Employment Directive was irrelevant to the applicants' employment status, as their employment was deemed to be permanent in accordance with Article 5(d) of the Termination of Employment Law 24/1967, which was applicable before Law 98(I)/2003 came into force.

On this ground, the court was bound to exercise its discretion in awarding increased damages to the applicants by considering the termination of their employment. They had held high-ranking positions in the CTO and the market conditions in the acting profession were not ideal for finding alternative employment.

The opposing side's references to Article 7(3) of Law 98(I)/2003 were limited. It argued that employment before the law's entry into force did not count towards converting a fixed-term employment contract into a permanent contract. Further, referencing the fact that the applicants had worked at the CTO for several years in high-ranking positions with high salaries, the opposing side recommended that the applicants should not be awarded increased damages, as it could not be proven that their employment opportunities would be limited as a result of the termination of their employment.

Decision

The court recognised the applicants' employment status by clarifying that although they had been hired by the CTO on fixed-term contracts, the requirements of their roles were permanent. Further, as it is a government organisation, CTO employees are governed by Council of Ministers regulations (ie, they are governed by public law rather than private law).

The decision drew on guidance from the Supreme Court rulings in Avraam v The Republic of Cyprus ((2008) 3 AAD 49)1 and CTO v Sofokleous (Civ Appeal 512/2012), in which it was established that the applicants' employment before the introduction of Law 98(I)/2003 was governed by public law rather than private law. In both Avraam and CTO, the employment status of fixed-term employees in the public sector, including government organisations such as the CTO, was governed by Law 98 (I)/2003 and the EU Fixed-Term Employment Directive.

Therefore, Law 98(I)/2003 and the EU Fixed-Term Employment Directive are applicable to all permanent employees hired under fixed-term contracts in the private or public sectors. According to Law 98(I)/2003 and the directive, all fixed-term employees whose employment is converted into permanent employment acquire rights guaranteed equally and fairly by the Court of Industrial Disputes. In this case, the rights acquired by the applicants as a result of the termination of their employment were governed by Law 98(I)/2003 and the EU Fixed-Term Employment Directive and no other legislation.

The court clarified that Law 98(I)/2003 has no retroactive effect and that the applicants' fixed-term employment before the law entered into force could not be considered to have converted into permanent employment and thus enable them to benefit from associated rights. As a result, in order to calculate compensation for unlawful dismissal, the court considered July 25 2003 to be the date on which the applicants had been hired.

The court considered that the applicants were permanent employees and that their employment had been terminated unlawfully. In the absence of legitimate grounds of termination, the non-renewal of their contracts was considered to be unlawful.

Comment

This ruling is in line with the Supreme Court decisions in Avraam and CTO, which follow EU case law (C-2060/04). The prevention and settlement of disputes and grievances that arise from the application of fixed-term contracts must comply with legislation, collective agreements and practices at a national level.

As confirmed by the court, Law 98(I)/2003 and the EU Fixed-Term Employment Directive apply to all employees on indefinite contracts in the private and public sectors and the remedies provided by the court in the case of illegality on the part of the employer must be complete, fair and equitable. Such remedies cannot be provided by the Supreme Court in the exercise of their authority under Article 146 of the Constitution. The Supreme Court's annulment jurisdiction is exercised only in the public sector. It has no jurisdiction to examine permanent contracts in the private sector. Therefore, the provision in Law 98(I)/2003 which establishes the Court of Industrial Disputes as the appropriate court to enforce equally and equitably the rights of employees whose employment status has changed from fixed term to permanent applies to both public sector and private sector employees.

Footnote

(1) EU Case C-2060/04.

Originally published by International Law Office.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions