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Khaletskiy’s case. Reinstate in job, compensate for moral damages

12/11/2012

In February 2012 Khaletskiy Anatoliy Petrovich, 3rd group disabled diagnosed on April 30 2010, appealed to the Office for the rights of persons with disabilities.

Khaletskiy told that on August 15, 2011 he was hired to closed corporation “Avtozavodskoi” as a controller of 4th class, he signed one year contract. On February 2, 2012 he was fired on the basis of p.2 art 42 of the Labour Code of the Republic of Belarus – noncompliance of an employee with the job due to the state of his health, preventing him from continuing to do the work.

The expertise by MREC and Individual program of rehabilitation of a disabled (IPR) from May 11, 2010, where the recommendations not to walk more than 4 kilometers a day were written, became the grounds for firing of Khaletskiy. The employer with the help of pedometer had measured that a 4th class controller walks more than 4 kilometers a day.

The lawyer of the Office for the rights of persons with disabilities got acquainted with materials of the case and made the conclusion that Khaletskiy was fired without any legal grounds. There are no grounds for firing under p.2 art. 42 of the Labour Code of the Republic of Belarus. Before the firing the employer hadn’t checked if the job under his contract is counter-indicative to Mr. Khaletskiy because of the state of his health. Khaletskiy’s IPR from May 11, 2010 hadn’t corresponded with his state of health as of February 2012 and couldn’t be the reason of firing under p.2. art 42 of the Labour Code of the Republic of Belarus.

Khaletskiy filed a claim, in which he asked to find the firing to be illegal, reinstate him in job, recover average earnings for the time of enforced idleness and compensate for moral damages.

The case was considered by the first instance court of Zavodskoi district of Minsk. The judge counted out the fact that at the moment of firing the employer didn’t have actual medical assessment of the Khaletskiy’s health state. The employer claimed that he used only the medical assessment he had at the moment of firing and that this is the assessment that have to be counted as actual.

During the hearing it was found out that in December 2011 Khaletskiy appealed to MREC on his own with the written request about the fitness to work as a 4th class controller. The same request was sent by “Avtozavodskoi” to MREC. They both got an answer, in accordance with which IRP of Khaletskiy had to be changed. But in order to do it the employer has to present the attestation of the working place or sanitary and hygienic characteristic with the indication of working conditions difficulty level. The employer hadn’t sent the requested documents to MREC and fired Khaletskiy. But the court had ignored this fact. Khaletskiy’s claim wasn’t satisfied. He filed a cassational appeal. At the same time he appealed to MREC in order to change his IRP. Panel of judges didn’t agree with the decision of first instance court. The case was forwarded for new hearing.

During the new hearing of the case it was found out that at the moment of firing and till now Khaletskiy’s state of health is fit for working as a 4th class controller at “Avtozavodskoi”.

It was confirmed by the decision of MREC from April 27, 2012 and July 6, 2012 in accordance with which the new factor of movement is 8 kilometers a day.

At the hearing specialist from Minsk city MREC explained that Khaletskiy’s labour recommendations set in April 2012 would correspond with the recommendations in February 2012 and the movement factor would have been enhanced up to 8 kilometers a day, because his state of health in March 2012 (the time of reexamination) was the same as it was in February 2012.

The defendant said about the firing: “Everything was legal. We had conclusion by MREC and IRP from April 30, 2012 in accordance with which the labour recommendations (4 kilometers a day) had been set without any time limit and the employer doesn’t have to make corrections of a disabled’s IPR”.

But this position is wrong because of the following: “in accordance with p.2 art 42 of the Labour Code of the Republic of Belarus employer can fire an employee in case if: the employee doesn’t fit the job because of the state of his health. Before the firing the employer is required to check if the employee is able to fulfill his job duties or not due to the state of his health. This requirement wasn’t fulfilled by the employer”.

After the repeated studying of the case materials, hearing the opinions of experts and prosecutor the court made the decision to satisfy Khaletskiy’s claim and decided to: reinstate Mr. Khaletskiy in job, recover average salary for the time of enforced idleness and compensate for moral damages.

The coordinator of the Office for the rights of persons with disabilities Sergei Drozdovskiy comments on the situation: “We think that the character of this hearing is very important to many persons with disabilities who work at free labour market. But only very small number of people is ready to understand their rights, which they obtain because of their disability and to protect them. As this case showed, in order to overcome dishonest behavior of employer and to protect your rights in court a person with disability needs a lot of moral power, belief in himself and the support of professionals. The success of this case is a good example of the fact, that it is not possible to protect the rights of a person without his own wish”.