Astana, 12 November. The Constitutional Court has concluded that the concept of “immoral misconduct”, for which the Labour Code allows an employee with educational duties to be dismissed, is sufficiently defined in law, the court’s press service said.
The court examined whether subparagraph 14) of paragraph 1 of Article 52 of the Labour Code complies with the Constitution. This provision allows an employer to terminate the employment contract of an employee who performs educational duties if that employee has committed immoral misconduct incompatible with continuing the work. The code does not list which acts are to be considered immoral.
The application was filed by a woman dismissed under this provision on the basis of a decision by a school’s council on teaching ethics. She challenged the dismissal before a conciliation commission and in the courts, but the judicial acts in her case were left unchanged. The applicant believes that immoral misconduct has no clear legal features or objective criteria. Because of this, in her view, the provision can be applied too broadly, which violates her right to work and to judicial protection.
The Constitutional Court disagreed. It pointed out that legislation sets reference points in the sphere of morality, including special requirements for teaching ethics and liability for breaching them. The concept itself, in the court’s assessment, is evaluative by nature, so it cannot be exhausted by a closed list of acts. To assess misconduct, the circumstances of the particular case and its social, cultural and professional context have to be taken into account. Hence the court’s conclusion: the concept is defined well enough to be applied with regard to specific circumstances.
The court also noted that the applicant had used the means of protection provided by law: she had turned to a conciliation commission and to the courts.
The statement does not say in what form the court set out its conclusion, what the misconduct consisted of, or at which school the applicant worked.
What it means: The provision stays as it is. The law is not obliged to list immoral acts: this is decided each time according to the circumstances — first by the employer and the ethics council, then by the conciliation commission and the court. A dismissed teacher is left to argue with the assessment of their own case, not with the provision itself.
Who benefits: For schools and other employers whose staff are engaged in upbringing, the court’s conclusion preserves the existing ground for dismissal. To employees the court points out the means of protection the applicant used: the conciliation commission and the court.
Background: An evaluative concept is one whose content the law does not describe exhaustively: it is filled in by whoever applies the provision, based on the circumstances of the case. A conciliation commission is a body within the organisation itself that considers a labour dispute before it goes to court. A week earlier, on 5 November, the Constitutional Court spoke on another evaluative concept — “irremovable doubts” in the Criminal Procedure Code.
We have also reported on how the Constitutional Court confirmed the meaning of “irremovable doubts” in the Criminal Procedure Code.
