Thematic feature - individual labour/employment disputes and the courts

This article examines how individual labour/employment disputes are handled through the courts in Bulgaria, as at March 2004.

In March 2004, the EIRO national centres in 24 European countries were asked, in response to a questionnaire, to give a brief overview of their country's system for dealing with individual labour/employment disputes through the courts, along with data on: the volume of cases; the costs; the timeframe; alternatives to going to court; and any current debate on these issues. The Bulgarian responses are set out below (along with the questions asked).

System

Please give a brief description of how disputes concerning individual employees' employment and labour rights are handled in your country by courts, tribunals or other official judicial bodies.

Bulgaria has no special system of labour courts, with employment-related cases being dealt with in the normal courts.

In autumn 1992, parliament adopted major amendments to the legislation concerning the hearing and handling of labour/employment disputes. This change to the Labour Code provided that labour disputes should be handled by the general civil courts, under the terms of the Civil Procedures Code. In December 1997, in accordance with Article 119 of the Constitution, three-instance litigation was introduced for labour disputes. Thus, at present, labour disputes (as well as other types of civil court cases) are generally handled by: the regional and district courts in the first instance; the district courts and courts of appeal in the second instance; and the Supreme Court of Appeal in the third instance. This three-instance system is the rule for handling labour disputes, but there are some exceptions whereby labour disputes are handled by two levels of court only (ie excluding the Supreme Court of Appeal):

• disputes regarding the length of all kinds of annual leave (main, extended, additional, paid, unpaid etc). It should be noted that disputes regarding the right to annual leave are dealt with under the three-instance system;
• disputes regarding workers' and employees' rights related to healthy and safe working condition - eg disputes over work clothing, personal protective equipment etc;
• disputes over employers' observance of the national minimum wage; and
• disputes related to the 'milder' disciplinary penalties imposed by employers, such as 'censure' or warning of dismissal.

The common feature of these exceptions is that the legislator has classified them as labour disputes that concern less important interests of the parties to the employment relationship, for which it is not appropriate to allow referral to such a high instance as the Supreme Court of Appeal.

Number of cases/disputes and costs

How many cases have been dealt with in your legal system by each category of court? Where possible, please provide statistics on the number of disputes in your country each year from 1990 to 2003 (or the latest year for which data are available). Where possible, please provide statistics on costs.

Data are available from the Ministry of Justice for the number of cases related to the Labour Code dealt with by regional and district courts - see tables 1 and 2 below (the data has been collected only since 1993).

Source: Ministry of Justice.

Source: Ministry of Justice.

No information is available on the costs of bringing individual labour/employment disputes to court.

Litigation timeframe

Where possible, please provide statistics on the timeframe within which court cases over individual labour/employment disputes are settled.

One of the most criticised aspects of labour disputes in Bulgaria is the extremely slow litigation process. Cases are rarely resolved in less than one-and-a-half or two years, and thousands of labour disputes are jamming the courts (indeed most court proceedings in Bulgaria are lengthy). Furthermore, it is thought that only a small proportion of labour disputes go as far as court proceedings - the situation would be even more difficult if a greater proportion of workers who believed that their employment rights had been breached took the legal route. Another problem with the slow progress of court cases in this area is that, even if workers win a case, they may receive no justice because the employer that is found guilty may well have ceased to exist (for numerous reasons) during the lengthy legal proceedings

In March 2001, important amendments were made to the litigation procedure for resolving labour disputes, in particular aimed at speeding it up. These changes included so-called 'fast litigation proceedings' for two categories of labour disputes:

• claims for protection against illegal dismissal. These claims concern the establishment of the illegal nature of a dismissal and its invalidation, reinstatement of the worker in his or her former job after a dismissal, and claims for compensation for the time during which the worker was unemployed due to the dismissal; and
• all claims for monetary receivables (ie remuneration) related to a legal employment relationship made by a worker against an employer.

Fast-track proceedings were introduced for disputes in these areas as they are regarded as particularly important and as concerning the potential violation of arguably the most significant workers' interests - the right to work and the right to remuneration. The fast-track proceedings involve accelerated handling of these court cases, in order to have them resolved more rapidly.

Other means of resolving individual disputes

Is there any kind of legal mechanism forcing or encouraging the two parties (management and employees) to resolve a dispute by prior negotiation? Where there is such a mediation process foreseen, please give details. Is there any evidence that mediation has had an effect on the volume of claims handled by courts? Are there any corporate policies built into the structure of organisations in your country specifically to deal with disputes? How are the employees’ representative bodies involved in the process?

Bulgarian legislation has established a system for conciliation and arbitration only for the handling of collective labour disputes. Mediation and voluntary arbitration may also sometimes be used, on a non-statutory basis, for the amicable settlement of collective disputes. Legislation does not require the application of any of these mechanisms with regard to individual labour disputes. Their use in such cases is only possible with the mutual consent of the disputing parties. At the same time, however, practice shows that such informal procedures are increasingly used for the settlement of workplace disputes.

Debate

Please summarise any current debate on the issue of employment/labour disputes litigated by courts in your country.

One of the longest-running discussions in Bulgarian industrial relations is over the creation of specialised labour courts. For almost 15 years, the social partners and government have so far been unable to come to a common understanding on this issue. While employers' organisations and trade unions support fully the idea of labour courts, the government has until recently taken the view that the creation of special courts is not a public necessity. Supporters of labour courts argue that:

• the development of employment relations over the past 15 years has run ahead of the judicial system. Employment relationships are now exercised in the new environment of a free market economy, and with a new role for the state in regulating relations;
• Bulgaria's pre-accession policy with a view to future membership of the European Union (expected in 2007) requires the achievement of EU standards in protecting the rights of citizens and the climate for investment, and this includes the rights of workers and employers; and
• efficient justice requires professionalism and the specialisation of courts in certain fields, which will lead to improved speed and quality in dispensing justice.

Proponents thus believe that the establishment of labour courts will: give citizens much better access to justice; speed up procedures will be faster; and eliminate unnecessary bureaucracy, since the 'strict' procedures that are normally needed for civil and criminal proceedings are not always appropriate for employment relations. The specialisation of courts would also, it is argued, means specialisation of court staff, thus leading to a better understanding of the relations between workers and employers and to a more just resolution of cases.

At a conference in March 2004, the Minister of Labour and Social Policy stated that it is necessary to develop a quick and efficient mechanism to enforce the law and resolve labour disputes between employees and employers - and the only way to do this is to create special labour courts (BG0405101N). This position has been put forward by the Ministry of Labour and Social Policy over the past seven or eight years. However, at the conference this view received strong support from the Minister of Justice for the first time. He stated that the Constitution allows special courts to be created through laws, and that the Ministry of Justice has started to analyse the financial and personnel resources available to secure the functioning of a future system of labour courts. This task is to be completed by the end of 2004. The Minister of Justice expressed the opinion that representatives of employers' organisations and trade unions should be involved in the new labour courts, perhaps playing a role in judging cases. It thus seems that for the first time the government is willing to take the first constructive steps towards addressing the labour court issue, rather than postponing it. The extent to which there is a genuine will to do this will be seen when the preparation of the 2005 state budget starts, as it is there that the financial basis for creation of the new institution needs to be laid down. (Ivan Neykov, Balkan Institute for Labour and Social Policy)