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clr/1977/1977_1_154.pdf

1977 Mar. 2 ~ NICOS G. SERVOS v. ATTORNEYGENERAL [TRIANTAFYLLIDES, P., L. LOIZOU, HADJ1ANASTASSIOU,JJ.] NIOOS G. SERVOS, Λ η * Appellant, V. THE ATTORNEY-GENERAL OF THE REPUBLIC, Z ^ C *upa»de«t. {Case Stated No. 169). Termination of Employment Law, 1967 (Law No. 24 of 1967)— Proviso to section 5(

  1. d)of the Law—Application thereof de­ pends on the judicialevaluationby the Court of the factsof eachcase—And shouldnot be treated as beingnecessarily de­ pendent on the existenceor not of mala fides on the part of 5 the employer concerned. The appellant was employed as a secondary education schoolmaster, under a series of contracts, on a part-time basis for eight years and on a full-time basis for the last, the ninth, year. When 'his employment was terminated he filed a claim 10 for compensation with the Industrial Disputes Court under section 3 of the Termination of Employment Law, 1967 (Law 24/67). Tihe tribunal dismissed his claim and hence the pre­ sent appeal by way of a Case Stated. What was in issuebefore thetrial court and before theCourt of Appeal was whether or not this was a proper case in which to apply the proviso to sub-paragraph (
  2. d)of section 5 of the above Law which reads as follows: 15 "5. Termination of employment for any of the following reasons shall not give rise to a right to compensation:20 (
  3. d)where the employment is terminated at the end of a fixed term contract or because of the attainment, by the employee, of the normal age of retirement by virtue of custom, law, collective agreement, contract,works rules or otherwise: Provided that where the Tribunal considers that any fixed term contract or any series of fixed term contracts should either alone or in conjunction be 154 25 considered as a contract of indeterminate duration, then such contract or series of contracts shall be deemed not to be a fixed term contract for the purposesof this sub-paragraph;" 5 10 15 20 25 30 35 The trial court concluded that such proviso ought not to be applied in favour of the appellant because it had not been established that there existed mala fides on the part of the Government, ashis employer, inthe sensethat therehad existed no intention on the part of the Government to prevent the appellant, by resorting to the method of appointing ihim from year to year by means of fixed term contracts, from enjoying any benefit under the relevant provisions of Law 24/67, such as, in the present instance, compensation for the termination of his services. Held,that the above approach of the trial court involves a wrong application of the law, because the proviso in question is not applicable only when there has been established mala fides in the aforesaid sense; that the application of the proviso depends on the judicial evaluation by the Industrial Disputes Court of the facts of eaoh particular case and it should not be treated as being necessarily dependent on the existence or not of malafideson the part of tnc employer concerned: and that, accordingly, this appeal will be allowed and the case will be remitted, with the opinion of this Court as contained in this judgment, to the Industrial Disputes Court for further consideration by it. Appealallowed. Case Stated. Case Stated by the Chairman of the Industrial Disputes Court relative to his decision of the 4th December, 1976, in proceedings under section 3 of the Termination of Employment Law, 1967 (Law 24 of 1967) instituted by Nicos G. Servos against the Attorney-General of the Republic, whereby his claim for compensation in respect of the termination of his employment as a secondary education schoolmaster was dismissed. G. Mitsides, for the appellant. R. Gavrielides, Counsel of the Republic, for the respondent. 40 The judgment of the Court was delivered by:TRTANTAFYLLIDES, P.: The appellant has appealed, by 155 1977 Mar. 2 NICOS G. SERVOS v. ATTORNEYGENERAL OF THE REPUBLIC 1977 Mar. 2 NICOS G. SERVOS v. ATTORNEYGENERAL OF THE REPUBLIC way of a Case Stated, against the dismissal by theIndustrial Disputes Court of his claim for compensation, under the provisions of section 3 of theTermination of Employment Law, 1967 (Law 24/67), in respect of the termination of his employment as a secondary education schoolmaster. Thetrial court found that the appellant wasnotentitled to compensation because his employment had been terminated at the endof a fixed term contract and that thiswas not a case where the series of contracts, under which the appellant had been employed onapart-timebasisfor eight years and on afull-time basis for the last, the ninth, year, could be deemed not tobe "a fixed term contract" for the purposes of sub-paragraph (
  4. d)of section 5 of Law 24/67, which reads asfollows:- 10 15 "5. Termination of employment for any of the following reasons shall not giverise to a right to compensation:(
  5. d)where the employment is terminated at the 20 end of afixed termcontract orbecause ofthe attainment, by the employee, of the normal age of retirement by virtue of custom, law, collective agreement, contract, works rulesor otherwise: 25 Provided thatwheretheTribunal considers that any fixed term contract or any seriesof fixed term contracts should either alone orin conjunction beconsidered as a contract ofindeterminate duration, then such contract or 30 series of contracts shall be deemed not to be a fixed term contract for the purposes of this sub-paragraph;" What has been in issue both before the trial court and before usiswhether ornot thiswasaproper caseinwhich 35 to apply the proviso to sub-paragraph (
  6. d)of section 5, above. As it appears from the Case Stated the trial court concluded that such proviso oughtnot to be applied in favour of the appellant because it had not been established that 156 40 thereexisted malafideson thepart of theGovernment, as his employer, in the sense that there had existed no intention on the part of the Govermnent to prevent the appellant, by resorting to the method of appointing him from 5 year to year by means of fixed term contracts, from enjoying any benefit under the relevant provisions of Law 24/67, such as, in thepresent instance, compensation for thetermination of hisservices. We are of the opinion that the above approach of the 10 trial court involves a wrong application of the law, becausethe proviso in question is not applicable only when there has been established male fides in the aforesaid sense. Theapplication of theproviso depends on thejudicial evaluation by the Industrial Disputes Court of the 15 facts of each particular case and it should not be treated as being necessarily dependent on the existence or not of malafides on thepart of the employer concerned. Wedo agree that if malafides,in the senseof attemptingtodepriveanemployeeof thebenefits underthelegisla20 tion concerned by appointing him from year to year on fixed term contracts,isfound thisis aconsideration which would lead to the application of the proviso. But, on the otherhand, theabsenceof thisfactor doesnotexcludethe application of theproviso,asappears tohavebeenthought 25 inthepresentcasebythetrialcourt. Before weconclude thisjudgment wehaveto maketwo observations: First, the application of the proviso in question is not, really, a matter of judicial discretion, but it depends on a 30 correct judicial evaluation of the relevant facts. Secondly, it has been stated on behalf of the appellant, during the proceedings before us, that in his case theprocedure of advertising his post and inviting applications each year for a temporary appointment thereto wasnever 35 followed whenhiscontractwasrenewed from yeartoyear; on theother hand, the saidprocedure is referred to, ingeneral terms, in the CaseStated as a matter relevant to the applicability of the proviso: but, no express finding is set out in the Case Stated as to whether or not such a proce40 dure was in fact followed in relation to the appellant; so, 157 1977 Mar. 2 NICOS G. SERVOS v. ATTORNEYGENERAL OF THE REPUBLIC 1977 Mar. 2 NICOS G. SERVOS v. ATTORNEYGENERAL OF THE REPUBLIC if the Industrial Disputes Court is going to attribute any weight at all to this aspect it should proceed to find out definitely whether the procedure in question was resorted toannuallyinthecaseof theappellant. In the light of the foregoing, we allow this appeal, by way of a Case Stated, and weremit thecase, with ouropinion as contained in this judgment, to theIndustrial DisputesCourtforfurther considerationbyit. The costs of this appeal to be costs in the cause, but, inanyevent,not againsttheappellant. Appealallowed. Order for costsasabove. 158

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