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Publication date: 15.05.2024
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Legal consequences of the KSU decision for retired teachers
SITUATION
The norm that teaching staff of state and communal institutions of general secondary education, who have reached retirement age and are paid an old-age pension, must work on the basis of employment contracts concluded for a period of 1 to 3 years, has become invalid. How to apply such a decision in practice? How to bring fixed-term employment contracts into compliance with legislation? What to do with retired employees who have already been dismissed from their positions?
DECISION
The Constitutional Court of Ukraine (hereinafter referred to as the Constitutional Court, the Court) by its decision dated February 7, 2023 No. 1-r/2023 (hereinafter referred to as the Decision of the Constitutional Court) recognized as unconstitutional the third paragraph of Part 2 of Article 22 of the Law of Ukraine dated January 16, 2020 No. 463-IX "On the Full general secondary education" (hereinafter - Law No. 463). Therefore, the requirement of the law that teaching staff of state and communal institutions of general secondary education who have reached retirement age and are paid an old-age pension should work on the basis of employment contracts concluded for a period of 1 to 3 years has become invalid.The court noted that the establishment for pedagogical workers of state and communal institutions of general secondary education who have reached retirement age and receive an old-age pension, the possibility of concluding exclusively fixed-term employment contracts with them, in contrast to pedagogical workers of state and communal institutions of general secondary education, who do not have reached retirement age and do not receive an old-age pension, constitutes an unfounded and unjustified restriction of the rights of these persons in labor relations based on age and the legal fact of receiving an old-age pension.
In addition, the disputed prescription puts teaching staff in an unequal, disadvantageous and vulnerable position depending on whether they have a certain type of property (pension payments) and the form of ownership of the relevant general secondary education institution, thereby violating the principle of equality enshrined in the Constitution of Ukraine.
Accordingly, a teacher who previously had the right to enter into an open-ended employment contract and enjoyed such a right during a certain period cannot be deprived of this right only in view of his reaching the retirement age and the fact of receiving a pension, because the Constitution of Ukraine does not bind the right to work and the freedom to conclude an employment contract upon reaching a certain age, receiving a pension or working in institutions of a certain form of ownership.
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After the KSU Decision, there are no differences between the hiring of an employee who has just completed his studies at an institution of pre-higher or higher education, a teacher with a certain length of work or a teacher who has reached retirement age.Heads of educational institutions no longer have any legal grounds to force employees to switch to fixed-term contracts.
Regarding the application of the court decision in practice
Part one of Article 91 of the Law of Ukraine dated July 13, 2017 No. 2136-VIII "On the Constitutional Court of Ukraine" stipulates that laws, other acts or their separate provisions, which are recognized as unconstitutional, lose their validity from the date of adoption of the decision of the Constitutional Court of Ukraine on their unconstitutionality, unless otherwise not established by the decision itself, but not before the day of its adoption
Clause 2 of the operative part of the Decision of the KSU states that the third paragraph of Part 2 of Article 22 of Law No. 463, recognized as unconstitutional, ceases to be valid from the date of adoption of the decision by the KSU.
That is, the provisions of the legislation on the conclusion of fixed-term employment contracts with retired teachers became invalid as of February 7, 2023 and cannot be applied to those legal relationships that arose from that date. Therefore, there are no restrictions on concluding an open-ended employment contract with a retired teacher.
