Communicated on 3 May 2019
FIRST SECTION
Application no. 41675/12
Ishkhan AGHAJANYAN
against Armenia
lodged on 20 June 2012
STATEMENT OF FACTS
The applicant, Mr Ishkhan Aghajanyan, is an Armenian national who was born in 1951 and lives in Yerevan.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
Since 2003 the applicant, who was a chemist, had been working at Nairit factory, a closed joint-stock company (hereafter - the factory) as a senior scientist. A private company owned 90% and the Government 10% of shares in the factory, which produced various chemical products.
On 1 July 2008 the applicant and the factory signed a declaration, as part of his employment contract, on the duty of confidentiality concerning his salary, which was 67,000 Armenian drams (AMD). Paragraph 2.1.11 of the applicant’s employment contract prohibited publication of information containing trade secrets of the factory.
On 5 February and 2 March 2010, the applicant filed a report with his management about the dangers for the environment and health of individuals of failing to handle properly chemical waste stored in the factory’s plants. He also stressed in his report that the Factory could benefit from the proper handling of the waste.
On 26 March 2010 the applicant filed a report with the director of the factory, stressing the lack of proper handling of chemical waste and accused the factory’s management of lack of responsibility and care.
On 22 April 2010 the applicant gave an interview to a newspaper journalist about certain shortcomings in the organisation of work in the factory, which was released in a newspaper article under the title “Explosive situation in the factory”. The article, making reference to the applicant, raised the alarm about 1,000 tons of dangerous chemical waste in the factory’s plants, which could ignite and explode any time, causing serious consequences for the environment and for the health of individuals. The article accused the factory’s management of negligence and lack of responsibility in handling this chemical waste, including by ignoring the applicant’s numerous warnings and proposed solutions. The applicant also expressed disappointment that a scientist with a doctorate earned only AMD 85,000, while each of the factory’s twelve deputy directors earned AMD 3-4 million monthly.
On 4 May 2010 the applicant filed a report with his management on specific ways to improve safety in the factory.
On 19 May 2010 the director of the factory decided to terminate the applicant’s employment contract. In his decision the director reasoned that by giving the interview of 22 April 2010, the applicant had breached Article 221(2) of the Labour Code and paragraph 2.1.11 of his employment contract. He stressed that information concerning scientific work and experiments, as well as the salaries of workers in the factory that the applicant had disclosed in his interview, was false and ungrounded. The director concluded that this was sufficient for the factory to lose its confidence in the applicant as an employee and terminate his employment contract on the basis of Article 113 of the Labour Code.
On 14 June 2010 the applicant instituted court proceedings seeking to annul the decision of 19 May 2010, paragraph 2.1.11 of his employment contract, the declaration of 1 July 2008, and to be reinstated in his employment. In support of his claim, the applicant argued that termination of his employment because of his interview of 22 April 2010 was unlawful and breached his freedom of expression.
On 23 September 2010 the Shengavit District Court of Yerevan granted the applicant’s claim. It reasoned that the factory had failed to articulate the legal basis of the decision of 19 May 2010 with sufficient clarity and show any damage resulting from the applicant’s interview. The District Court also noted that the interview of 22 April 2010 did not disclose any trade secret and that the factory had failed to establish that this interview harmed the interests of the factory.
The factory appealed against that judgment.
On 17 February 2011 the Civil Court of Appeal reversed the judgment of 23 September 2010 and ordered new examination. It reasoned, in particular, that the information provided by the applicant to the newspaper journalist, including about staff salaries, contained trade secrets and, therefore, the factory had the right to terminate the employment contract for loss of confidence.
The applicant lodged an appeal on points of law.
On 11 April 2011 the Court of Cassation declared the applicant’s appeal on points of law inadmissible.
On 19 September 2011 the District Court rejected the applicant’s claims on grounds similar to those in the decision of 17 February 2011, which was upheld in the final instance by the Court of Cassation on 8 February 2012.
B. Relevant domestic law
Labour Code of 2004 (in force since 2004)
Sub-paragraph 7, paragraph 1, of Article 113 provides that an employer shall have the right to terminate an employment contract in case of losing its confidence in the employee.
Article 122 provides that an employer shall have the right to terminate the employment contract of an employee whom it no longer trusts, if that employee (a) destroyed, harmed, lost or appropriated the employer’s property; (b) created a risk to the safety of the employer’s property; (c) caused distrust among consumers, customers and partners of the employer, as a result of which the employer sustained or could have sustained damage.
Paragraph 2 of Article 221 provides that publishing of state, professional, trade and technological secrets constitutes a serious breach of employment discipline.
COMPLAINT
The applicant complains under Article 10 of the Convention that termination of his employment on account of his interview of 22 April 2010 breached his right to freedom of expression.
QUESTION TO THE PARTIES
Was the termination of the applicant’s employment contract on account of his interview of 22 April 2010 in breach of his freedom of expression as guaranteed by Article 10 of the Convention (Guja v. Moldova [GC], no. 14277/04, §§ 69-78, ECHR 2008)?
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