Analysis of a judgment determining discrimination based on family and marital status

Analysis on judgement РОЖ-1019/18 of the Appellate court Skopje, by Blagoja Pandovski. 

1. Factual situation
The plaintiff M.M J. from , K., was employed by the defendant OOU”H.T.K” s.D., with headquarter in , Municipality S.N., but she was doing her work duties in her work place – school pedagogue. In this sense, the plaintiff, for the first time she set up the work relationship fix-termed, for a period of 3 months, after which the employment continued on the basis of several contracts for employment for a fixed period of time, the last contract was concluded on 01.09.2015 for a period of 3 months. The total duration of the working relation of the plaintiff, from the signing of the first Employment Contract for a fixed period, to the last such agreement amounts four years and three months. During the school year 2015 the principle of the school, that is, now the defendant S.S., submitted documents requesting transformation of the working relation from fixed-term to working relation on undefined time, to the competent Municipality S.N., for the plaintiff and for 5 other employees, on the different work positions in the school. The work position, on which the plaintiff worked – school pedagogue, in July 2011, remained vacant due to the retirement of the previous employee, from these allegations it follows that the workplace was permanently discharged. In July 2015, after having previously been submitted the documentation for transformation of the plaintiff’s employment from a fixed to and indefinite period, the plaintiff, at the workplace, publicly announced that she was in the fourth month of pregnancy. The second defendant S.S withdrew the request for transformation of the working relation of the plaintiff, without a warrant from any institution, by her own decision. All the other requests for transformation of the working relations from fixed-termed to undefined time, except for the plaintiff’s, resulted with transformation of the working relations to undefined time. It is fact, that after the control of the State Education Inspectorate conducted on 19.11.2015, it was established that the plaintiff fulfilled all the prerequisites for transformation of her work relation from fixed-termed to undefined time and that the principle of the school – second defendant in the procedure unreasonably withdrew the request for transformation of the work relation of the plaintiff. On 24.11.2016, public announcement was published the work position – pedagogue in OOU.”H.T.K.”, Municipality S.N, which in fact was the work position of the plaintiff. From these allegations we can notice that the first defendant OOU.”H.T.K.” had real need for worker on the plaintiff’s position. The plaintiff immediately applied for this job announcement and submitted a request with the complete documentation in order to keep her job – school pedagogue. However, on 12.12.2015, a notification from the school was submitted to the plaintiff, informing her that with Decision for concluding a contract for admission candidates under the announcement published on 24.11.2015 for work position – school pedagogue was hired another person with whom the School will sign Fixed-termed Contract. This person still works in the specific position with the Contract on undefined time.
2. Procedure actions, course of the procedure, decision on the higher court
The plaintiff submitted lawsuit to Basic Court in Kumanovo requesting to establish that the defendant OOU”H.T.K”, in s.D, municipality SN and the school principle S.S. from Kumanovo  committed discrimination based on her personal status, family and marital status – parenthood. She also requested the defendants, OOU”H.T.K” s.D, in municipality SN and the school principle from municipality K., to be indebted with solidary payment to the plaintiff, compensation for non-pecuniary damage, in amount of 100.000.00 denars within 8 days after receiving of the verdict. In the first instance procedure two verdict passed. The first verdict was pronounced on 13.04.2017, but was abolished with judgement from the Court of Appeal in Skopje.  The second verdict II RO no.17/2018 was pronounced on 03.05.2018 and completely accepts the claim of the plaintiff and establishes withdrawal of the lawsuit in the part obliging the defendant to return the plaintiff to his working position and to sign new Employment Contract. This verdict was confirmed in part by the Court of Appeal in Skopje ROZ- 1019/18 from 26.09.2918, but in part is altered. The first instance Court carried out the propose evidence by the plaintiff and the defendant and applied the material law that corresponded with the plaintiff’s claim. The legal framework applied in the particular situation encompasses Art.1 of European Convention for the Protection of Human Rights, Art.1 of Protocol 12 to the European Convention for the Protection of the Human Rights, Art.2, Art.3, Art.5, paragraph 1, point 3, Art. 14 paragraph 1, point 8, Art. 36, paragraph 1, Art. 38, paragraph 1 from Law on Protection and Prevention against discrimination and Art.9-b paragraph 1 and Art.10 from Law on labor relation of the Republic of Macedonia.
3. Explanation of the verdict of The Court of Appeal in Skopje ROZ- 1019/18 from 26.09.2018
The second instance procedure that resulted with the verdict of The Court of Appeal in Skopje ROZ- 1019/18 from 26.09.2018 , is initiated by appeal requested by the defendants on all grounds on which a appeal can be logged in accordance with Art. 342 from Law of the Litigation Procedure of the Republic of Macedonia: essential violation of the provisions of the litigation procedure, due to the incorrect or incomplete established factual situation and due to the incorrect application of the substantive law.
The Court of Appeal in Skopje acted within its competencies determined by the Law on the Litigation Procedure of the Republic of Macedonia, which determine its competencies after the appeal was filed. Тhe court examines the first instance verdict in the dispute part, within the limits of the appeal grounds, and ex officio takes care of the application of the substantive law and violation of the provisions of the civil procedure.
 In this case, The Court of Appeal in Skopje partially accepted the appeal logged by the defendant’s authorized representative. Regarding the sustainability and extensiveness on the explanation given by The Court of Appeal with the adoption of the judgment in question, two different types of explanations are given. In the part that confirms the first instance verdict, The Court of Appeal gives an extensive and reasoned explanation, referring to the evidence presented in the first instance procedure, the provision of the substantive law and procedural articles. In the part with meritorious decision-making, the first instance verdict is changed, whereby The Court of Appeal decides on the amount of compensation for non-pecuniary damage, which the defendants are obligated to pay to the plaintiff, it can be noted that the Court of Appeal did not give a more specific explanation why and according to which reasons the amount defined by him is fair and that the previous amount defined by the firs instance court is unfair.
In the part in which the violations on the articles of the Law of Litigation Procedure are analyzed The Court of Appeal in his explanation took care only for one part of the violations and that show us that the complainant pointed out complaints related to violation of this provision only. Namely, the court examined only the part of the essential violations, whether the verdict has defects, whether the pronouncement of the verdict is incomprehensible, whether it contradicts itself or the reasons for the verdict, does the reasons for the decisive facts and whether those reasons are unclear or contradictory as to whether there is contradiction between the reasons of the judgment and the evidence for the decisive facts. However, it is not a rule that the court examines these circumstances only by appeal because the court ex officio takes care of the violation of the provisions of the litigation procedure that are of an essential nature. The fact that The Court of Appeal have not explained the other grounds of the appeal on which the court takes care ex officio, can be interpreted that the complainant did not complaints on the basis of the points stated and that the court did not find any irregularities  based on the application of the same. The explanation of The Court of Appeal in the part of the essential violations of the provisions of the litigation procedure is explained with one sentence on page 2 of the judgment where it was considered that the appealed verdict is clear, comprehensible and contains sufficiently reasons for the decisive facts by which The Basic Court was governed, without detailed explanation of the conclusion.
In the part where the court went into the analysis of the complaints related to the incorrectly and incompletely established factual situation, found that in the appealed verdict the factual situation was correctly and completely determined and the verdict reasons for the decisive facts. Unlike the part of the essential violations of the provisions of the litigation procedure, where, as I mentioned, it is not included in a more detailed elaboration of the court’s explanation, in this part of the explanation the Court elaborates its conclusions in detail, sticking to the appeal, since the factual situation is not something that is examined ex officio according , but only after the allegations in the appeal. According to this, the court initially cited the complainant’s appeal grounds, and then elaborated them detailed in the context of the appraisal that the first instance court gave sufficient explanation from which it can be concluded why it considers that the prominent complaints in the section are unfound. It is particularly interesting that in the part of the established factual situation, the Court of Appeal gave a special analysis of the evidence in the sense of Art. 35 paragraph 1 of the Law of Prevention of Discrimination where it is stated that if the party in court proceedings claims that according to the provisions of the same law it was violated the right to equal treatment shall be obliged to present all the facts and evidence justifying its claim, while the opposite side must prove that there is no discrimination – onus probandi.  The Court found in this regard that the defendants did not provide evidence from which it may appear that there is no discrimination in the specific case. The Court of Appeal also elaborated the conclusions of the first instance court in the part defining the postulates of discrimination itself, the unequal treatment, and wrote that the other workers were in an analogous or similar situation with the plaintiff, but the other workers had a mora favorable treatment, from here we can state the discrimination related to the plaintiff.  Such as analysis of The Court of Appeal in Skopje in the part of the allegations of incorrectly and incompletely established factual situation is really detailed explained.
In the part of the Analyses of the allegations of the appeal related to the incorrect application of the substantive law, the court ruled on the ruled on the applicant’s complaints, but also examined the first instance verdict ex officio, considering the provisions on civil proceedings, the court ex officio takes care of the application of material law. From the explanations of the court in this part, which is extensive, it can be said that The Court of Appeal explained all the relevant Articles of the Law of Labor Relation and the Law on Prevention and Protection of Discrimination that are applicable in this  situation. The interesting part is that in this section in the part of the examination of the substantive law applied by The Basic Court, The Court of Appeal gave and analysis of the provisions of the European Convention on Human Rights and Freedoms and its Protocol 12. The Court of Appeal confirmed the correct application of Art.14 of the European Convention on Human Rights and Freedoms on the Prohibition of Discrimination and Art.1 of Protocol No.12 to the Convention, which refers to te general prohibition of discrimination on any ground. The application of the provisions of the European Convention on Human Rights and Freedoms, especially when it comes to discrimination by the domestic courts, is certainly essential which must become usual practice of the Courts. From here, it can be concluded that the reasoning of the Court of Appeal in the part of the application of the substantive law is extensive, sufficient and within the framework of the Law on Litigation Procedure. In the part of the judgment where the Court of Appeal explained the reasons for changing the first instance verdict in the part of the non-pecuniary damage, several interesting things can be noted. Namely, the Court of Appeal in this section analyzed the factual situation of the first-instance court, mainly concentrating on the medical psychiatric expertise in which it determined the intensity and duration of the mental pain suffered by the plaintiff and failed to establish that the first-instance court incorrectly determined the duration of the mental pain and its intensity. However, the Court of Appeal appreciated that the first-instance court determined the amount of the non-pecuniary damage too high, in the amount of 100,000 denars and halved it, it was determined in the amount of 50,000 denars. However, the Court of Appeal, except that it considered that this amount was fair and did not contravene the nature of the right to compensation, did not went further into a more detailed explanation on the basis of which real indicators and facts came to this conclusion. When the higher court alters the first instance verdict, it directly involves deciding the merits of the dispute or in the case of a part of the dispute, and The Court of Appeal must give a detailed explanation as to why he has decided as he has decided. The use of the legal terms "fair" and "does not contravene the nature of the right to compensation" without specifying which are the bases for establishing fairness and the right to compensation is not sufficient justification for the meritorious decision-making. Also, in this section we can see the quantitative difference of the explanation compared to the explanation in the part where the first instance verdict is confirmed, whereas in this section the explanation is much more fragile.
4. Conclusion
The general conclusion is that the Court of Appeal in deciding upon the appeal retained within its competencies determined by the Law on Litigation Procedure, in all of the three areas covered by the allegations in the appeal.
Furthermore, it can be concluded from the present verdict that the court had carefully evaluated the complaints raised by the applicant and provided a good explanation of the complaints that they are unfounded and which they consider like grounded complaints. Even more in the procedure, The Court of Appeal in Skopje reviewed the complaints in a wider and narrower context, that is, in its explanation, he appreciated their merits using more legal provisions but did not go beyond the meaning and reasons for which these allegations were highlighted.
From the analysis of the verdict of The Court of Appeal in the part in which meritorious decided to change the verdict of the first-instanced court, we can conclude that the explanation given by the court should have been more detailed and should contain the reasons why the court changed the firs-instance’s court verdict. Namely, if the court in this part measured the amount of non-pecuniary damage for the particular plaintiff, he had to explain why the amount of 50,000 denars considered to be more fair than the previous amount of 100,000 denars with the first instance verdict. The fairness of non-pecuniary damage is a circumstance which must be assessed in concrete terms with the circumstances of the individual who is being convicted and the holders who have caused the same from the action that caused the damage. The lump-sum explanation that a certain fee is fair and another is not as a subjective perception of the judges is not sufficiently explained reason.