3 C.L.R. 1983 November1 [TRIANTAFYLLIDES, P., HADJIANASTASSIOU, A. LOIZOU, MALACHTOS, LORIS AND STYLIANIDES, JJ.] GEORGHTOS APOSTOLIDES AND OTHERS, Appellants. v. THE REPUBLIC OF CYPRUS, THROUGH THE C

Article 28

of the Constitution—Do not convey the notion of exact arithmetical equality but safeguard only against arbitrary dis­ crimination without excluding reasonable distinctions—Termination of Employment (Amendment) (No. 4) Law, 1979(Law72/79) giving right to redundancypayment to those whoseemployment was terminated between the Ι4/Λ July, 1974 andbefore the Ι8/ΛApril, 1977 but who were re-employed thereafter—And not giving such a right to those who were not re-employed through having reached the age of 65—Differentiation made neither arbitrary nor unreasonable—No Article of the Constitution offended. The main issue

this appeal was whether the Termination of Employment (Amendment) (No.4) Law, 1979 (Law 72/79) giving a right to redundancy payment to those whose employment was terminated between the 14th July, 1974 and before the 18th April, 1977,but who were re-employedthereafter,and not giving sucha righttothosewho hadtheir services terminated between the aforementioned dates and were not re-employed having reachedtheage of 65, is unconstitutional as being contrary to Article 28 of the Constitution. Held, that the concept of equality

the context of Article 28 of our Constitution is a relative one and is designed to maintain equality among matters equal to themselves and that the expressions "equal before the Law"

Article 28.1 and 233 Apostolides and Others v. Republic

Article 28

.2 do not convey the notion of exact arithmentical equality which is safeguarded only against arbitrary discrimination without excluding reasonable distinctions; that it was only because the applicants have reached their pensionable agethat they cannot beentitled to redundancy 5 payment, and so the situation came

to existence which is claimed to constitute a discrimination, but this is not a differentiation or discrimination made by the law which revived the Fund

order to compensate persons who are to be

employment, whose services are to be terminated after this 10 Law came

to force and whose age is not over 65 years; that, therefore, this differentiation is neither arbitrary nor unreasonable and no Article of theConstitution has been offended

any way; accordingly the appeal must fail. Appealdismissed. 15 Cases referred to: Apostolides and Others v. Republic

vasion and occupation of part of the territory of the Republic the said Corporation had to cease the operation of the mines at Skouriotissa, having for all

tents and purposes become

accessible to its staff. On the 1st March 1975,C.M.C. wasdeclared a stricken Enter• Reported

volved the payment of some compensation to each one of them. The employees, 10 however, pursued thereafter their efforts towards the Ministry of Labour and Social

surance for the payment to them of redundancy payment.

the meantime the Termination of Employment (Amendment) Law 1975 (Law No. 1 of 1975) was enacted. This Law was

tended to be a temporary mea15 sure to meet the consequences of the

vasion which necessitated the suspension of redundancy payment to the thousands of workers whose employment was terminated as a result of the tragic events of the summer of

1. Its duration was successively extended up to the 18th April 1977 by Laws Nos. 67 of 20 1975, 17 of 1976, and 18 of
2. As it will appear hereinafter the applicants had submitted claims for payment out of the Redundancy Fund as far back as the time of thetermination of their employment which claims obviously stood dismissed on account of the enactment of Law 25 No. 1of 1975 and the successive Laws that extended its force. The applicants, however, continued their efforts to all directions for a change of the said Law or a satisfaction of their claim for redundancy payment but unsuccessfully, when on the 13th July 1971,they addressed through their counsel to the Director30 General of the Ministry of Labour and Social

surance the following letter: 35 " 1 . 1 have been requested by a number of clients who appear

the attached Schedule 'A' to communicate with you

order to put forward the following and request their solution. (a) All of them were employed

various departments of the Cyprus Mines Corporation. (b) All were dismissed as redundant personnel after the Turkish

vasion. 235 Κ. Loizou 3. Apostolides and Others \. Republic

view of the aforesaid factors, we are of theopinion that the matter must bere-examined

its re-examination there must be taken

to consideration the provisions of Articles 9, 25 and 29 of the Constitution and pay to the 15 said entitled persons everything which they are entitled to; as the whole system and its spirit provided and provides, contribution for the purpose of

suring, as against future problems and/or demands of the person

whose favour the contribution or

surance is. When the problem arose 20 the demand for the cover of the risk comes

to existence,

the present case

the form of monetary compensation for their dismissal on accountof redundancy or other consi­ deration proportionate to the years of service of each one of them as provided by the Law by virtue of which the 25 contributions were made by my said clients". The said Director-General replied to the aforesaid letter by his letter dated 25th August 1981, pulting right a number of allegations, both the factual and legal aspect of the case contained therein, as follows: 30 The Fund for Redundant Employees is financed by con­ tributions which are wholly made by employers and the payment or not of contributions by one concrete employer has no relation to the right of the employee for payment on account of redundancy. * 35 The redundancy payments for termination of employ236 3 C.L.R. 5 10 15 20 25 Apostolides and Others v. Republic A. Loizou J. ment which took place on or after the 15th July, 1974,were suspended

March 1975. The reason of the suspension wastheinability of the Fund to meet its obligations. More specifically it was estimated then that the termination of employment of employees on account of redundancy because of the Turkish

vasion were 50,000 out of which 20,000 would be entitled to redundancy payment. The amount which would be needed for payments on account of redundancy for the 20,000 was estimated between 6 to 7 million pounds, whereas the reserves of the Fund at the end of 1974 amounted to C£1,200,000.-.

April 1977 the payments on account of redundancy were reinstated under different, however, terms and prerequisites. There were excluded the payments for terminations which took place between the 15th July, 1974 and the 17th July, 1977.

December 1979 the legislation for termination of employment was amended again. By virtue of Law No. 92of 1979since December 1979the payments on account of redundancy are made under the same terms and prerequisites that were made before July 1974. There remains, however, the provision for the nonpayment on account of redundancy, if the employment was terminated between the 14th July 1974, and before the 18th April, 1977.

view of the aforesaid provisions of the legislation your clients are not entitled to payment on account of redundancy". The necessity for its enactment is clearly set out

the aforesaid letter of the Director-General, arising out of a situation

30 respect of which the Courts of the Republic have repeatedly taken judicial notice. Upon receipt of this letter the applicants filed a recourse which was determined by a Judge of this Court and who dismissed it on the 30th September, 1982, for the grounds given 35

his elaborate judgment reported as Apostolides & Others v. The Republic

this Court has been directed against the exclusion of the appellants and the people belonging to the same category as themselves, by the Termination of Employment (Amendment) (No.4) Law, 1979 (Law No.72 of 1979), from the revived oper- 5 ation of the Redundancy Fund, as such exclusion it was argued was an unreasonable and arbitrary discrimination and therefore unconstitutional, as offending Article 28 of the Constitution and also as violating Articles 9, 23 and 29 ef the Constitution. Section2of the said Law provides that no one whose employ- 10 ment was terminated between the 14th July 1974 and before the 18th April 1977isentitled to payment on account of redundancy. It has been urged that this provision, read

conjunction with the remaining provisions of the said Law, gave a right to redundancy payment on the conditions set out therein to all 15 those whose employment was terminated during the aforesaid period, but who werere-employed thereafter, whereas the appellants, who by virtue of having reached the age of 65 could not_ beeligible for redundancy payment and sothey loseallthe rights they had

the Redundancy Fund. 20 This was a new line pursued for the first time

this Court where it was conceded that the situation justified on the ground of necessity the suspension of the operation of the fund and no objection was taken any longer against the approach of the learned trial Judge reached on these issues. This was obviously 25 done

order to bypass the big obstacle of the sub judice acts

question, being confirmatory

nature. To all the arguments advanced our brief answer is that

so far as the case related to the claims of the applicants, as set out

their letter of the 13th July 1981,

respect of any 30 right to redundancy payment that arose before the enactment of Law No. 92 of 1979 the subject decisions could not but be considered, as the learned trial Judge did, as confirmatory and therefore not capable of being the subject of a recourse under Article 146 of the Constitution and consequently that the 35 recourse was out of time vis-a-vis the original executory acts, of which the subject ones were confirmatory.

so far, however, as they refer to claims of unconstitutionality of Law No. 238 3 C.L.R. Apostolides and Others \. Republic A. Loizou J. 92of 1979

the sense that the revival of the reactivation of the Fund for the redundant employees should have been made on the basis of equal treatment and should have given to all its previous beneficiaries the same rights, the decision which is 5 contained

the letter of the 25th August 1981, and to that extent only could be considered as being an executory one. So we have decided

the circumstances to examine the constitutionality of the relevant sections of the said Law which have beenquestioned on the basis ofthe differentiation made between 10 those, who, as put by counsel, had their services terminated between the aforementioned dates and were never re-employed and those, who were re-employed and were entitled to compensation from the fund by crediting them also with the prior to the said period years of service. 15 It has been time and again stated that the concept of equality

the context of Article 28 of our Constitution is a relative one and is designed to maintain equality among matters equal to themselves and that the expressions "equal before the Law"

Article28.1and"discrimination"

Article28.2do not convey 20 the notion of exact arithmetical equality which is safeguarded only against arbitrary discrimination without excluding reasonable distinctions. Nodoubt under the said Law no one isentitled to redundancy payment whose services were terminated during the aforesaid 25 period and no payment was madein respect of such termination of his employment and no right was given to anyone to be paid compensation

respect of the period for which the operation of the fund was suspended.

that respect no differentiation at all was made. 30

fact what was provided by the Law was that those who were re-employed after the 18th April 1977, would be entitled to redundancy payment calculated

the manner provided by the law. It was only because the applicants have reached their pensionable age that they cannot beentitled to redundancy pay35 ment, and so the situation came

to existence which is claimed to constitute a discrimination, but this is not a differentiation or discrimination made by the law which revived the Fund 239 A. Loizou J. Apostolides and Others v. Republic

order to compensate persons who are to be

employment, whose services are to be terminated after this Law came

to force and whose age is not over 65 years. We find that this differentiation is neither arbitrary nor unreasonable and no Article of the Constitution has been offended

any way. 5 For these reasons the appeal is dismissed,%but

the circumstances we make no order as to costs. Appeal dismissed with no order as to costs. 10 240