The author of the communication is S.F., a national of Lithuania born in 1974. He asserts that the State party has violated his rights under articles 19 and 22 of the Covenant. The Optional Protocol entered into force for the State party on 20 February 1992. The author is represented by counsel.
Facts as presented by the author
From 1995 to 7 August 2015,3 the author was employed by Lithuanian Railways, a company wholly owned by the Ministry of Transport and Communications. His job was to repair and inspect trains before their departure to ensure compliance with technical safety criteria.
- The author also indicates that he was dismissed from that job on 28 September 2015. ↩
Since 10 August 2011, the author has also been the President of the Solidarity Trade Union of Lithuanian Railways Workers. He defends workers’ rights and combats corruption. He has raised serious allegations relating to corruption and a lack of accountability and transparency in State-owned companies and large-scale fraud and money laundering at the expense of taxpayers.
Under Lithuanian law, workers may strike pursuant to a collective bargaining agreement between a trade union and an employer. Beginning in 2011, the author, in his role as the leader of the Solidarity Trade Union, campaigned for the signing of a collective bargaining agreement between Lithuanian Railways and its workers. The negotiations began only at the end of 2017. On 29 December 2017, Lithuanian Railways refused to continue the negotiations, thereby denying recognition of its workers’ right to strike.
The author’s advocacy for the strike and for the collective bargaining agreement led to his dismissal from his job. Lithuanian Railways also persecuted and intimidated members of the Solidarity Trade Union. As a result, the author created a pathway to secret membership in the Solidarity Trade Union. Following that measure, the composition of the Solidarity Trade Union changed, such that a majority of its members are secret members. The Solidarity Trade Union is forced to meet and organize clandestinely.
On 28 July 2014, the author organized protests of workers outside the offices of Lithuanian Railways, outside another State-owned company and outside the offices of the Ministry of Transport and Communications. He and the other workers chanted slogans including, “No to the persecution of trade union members”, “End the abuse”, “No to psychological terror”, “No to intimidation and terror” and “No to corruption”.
The Government repressed the protests, which had attracted media attention, and initiated dismissal proceedings against the protest organizers, including the author. On 30 October 2012 [sic], Lithuanian Railways issued an order in which it dismissed the author from his employment.
The author successfully appealed against his dismissal. On 15 July 2013, the Vilnius Regional Court ordered his reinstatement to his position. He then resumed his post with Lithuanian Railways. He feared, however, that he would be dismissed again because of his pro-labour and anti-corruption activities. By 2015, he had represented workers in several judicial proceedings against Lithuanian Railways.
On five occasions in 2015, while working as a train inspector, the author refused to sign forms in which it was stated that he had completed his technical inspection and that the trains were ready for departure. The author refused to sign the forms because he had been assigned on those occasions to perform inspections in the evening. In such cases, the train would depart in the morning, i.e. about 12 hours after his inspection. The author believed that the situation was a trap. During the 12 hours after the inspection, it would have been possible for someone to sabotage the train to provoke an accident. That could have caused the deaths of passengers. Fearing such a situation, on 9, 11, 13, 17 and 21 September 2015, the author wrote on the inspection forms, “I do not accept liability”.
On 28 September 2015, the author was again dismissed from his job. On 9 June 2016, the Vilnius City District Court denied his appeal against of his dismissal. On 28 December 2016, the Vilnius Regional Court denied the author’s appeal against of the decision of the District Court. On 10 November 2017, the Supreme Court denied his cassation appeal. The author states that he has not submitted the same matter to another international body for consideration.
Complaint
The author claims that, in violation of article 19 of the Covenant, his dismissal from employment at the State-owned railway company constituted punishment for an expression of opinion. The statement that he wrote on the five inspection forms (“I do not accept responsibility”) represented his opinion about the safety policy of the railway company and the Lithuanian Ministry of Transport and Communications. It put pressure on the railway company to change its regulations to increase passenger safety. Therefore, the author should not have been dismissed based on that statement.
In violation of the author’s rights under article 22 of the Covenant, article 21 (1) of the Lithuanian Law on Trade Unions does not provide a standard of protection for workers elected to the governing bodies of trade unions. According to that provision of domestic law, a worker elected to a governing body of a trade union may not be dismissed without the consent of that governing body when the worker is not at fault. If the worker is at fault, however, even the president of a trade union may be dismissed without the consent of the trade union. When a worker who is elected to a governing body of a trade union is dismissed from employment, the dismissal should be presumed to represent impermissible punishment for trade union activities.
State party’s observations on admissibility and the merits
In its observations of 9 July 2021, the State party considers that the communication is inadmissible because it is insufficiently substantiated and is incompatible ratione materiae with the provisions of the Covenant. For the same reasons, it is without merit. It is stated in the applicable official job description that an inspector-repairman of railway carriages is responsible for the proper performance of specified duties, the correctness of information provided, the proper and timely technical inspection of train carriages and compliance with the rules of procedure and other legal acts. The author familiarized himself with the job description and signed it on 4 September 2015. He also confirmed with his signature that he was required to follow the job description, although he handwrote the following statement on the document: “only as far as it is possible and does not contradict the laws of the Republic of Lithuania, [European Union] laws and other regulatory documents and my remarks.”
On 1 July 2014, the author signed the operating technology form of the Vaidotai Railway Station. On 11 August 2014, he signed the rules of procedure of work that were in force at the time. Those rules had been negotiated with the author in his capacity as the Chairman of the trade union of Lithuanian Railways. Indeed, on 24 July 2014, he had signed the rules in that capacity. In paragraph 79 of the rules, it was stated that failure to perform or inappropriate performance of job duties owing to the fault of an employee constituted a violation of work discipline. In paragraphs 80 and 81 of the rules, it was stated that penalties, including dismissal, would be imposed for disciplinary violations such as a failure to perform direct job responsibilities and the improper performance thereof. In paragraphs 95 and 96 of the rules, it was stated that individual labour disputes that could not be resolved by the parties would be considered by a labour dispute commission and the courts.
On 15 April 2014, the author signed a statement in which he confirmed that he was familiar with an official instruction of Lithuanian Railways in which it was stated that employees would carry out, in a timely and proper manner, the technical inspection of the railway carriages.
On 9, 11, 13, 17 and 21 September 2015, the author placed the statement, “I do not accept responsibility” instead of his signature on the train inspection forms. On 15 September 2015, Lithuanian Railways, invoking article 240 (1) of the Labour Code, asked the author to provide a written explanation of his failure to sign the inspection form on 9, 11 and 13 September 2015, in violation of paragraph 5.5.18 of the operating technology form. On 21 September 2015, the author submitted his written response, in which he stated that he had not violated procedure because he was obligated to sign the form only if the train left during his shift. If the train left after his shift, he could not be responsible for the inspection, since he could not take the train home with him and then bring it back before starting his shift the next day. He alleged that employees like him, who were disliked by Lithuanian Railways, could be found responsible for improper acts that they had not committed.
On 18 September 2015, Lithuanian Railways sent the author a similar letter regarding his failure to sign the form on 15 and 17 September 2015. On 23 September 2015, the author responded and stated that he had submitted all of his explanations in his letter of 21 September 2015.
On 18 September 2015, Lithuanian Railways sent the author a letter in which it confirmed that, on 4 September 2015, it had received a report regarding the author’s failure to comply with several requirements contained in his job description. Lithuanian Railways confirmed that it had examined the author’s responses and did not agree with them and informed the author that he was required to follow the job description, the operating technology form and other relevant documents. Lithuanian Railways also gave the author notice that his refusal to comply with the requirements of those legal acts would be considered arbitrary. On 19 September 2015, the author received and signed for the letter.
A similar exchange took place regarding the fifth incident, which had occurred on 21 September 2015. On the same date, Lithuanian Railways sought in writing an explanation from the author. On 23 September 2015, Lithuanian Railways organized a meeting in which the author participated. He stated that he had previously provided his arguments, that he had received the warning letter, that his decision not to sign the form had been deliberate, that he had no legal obligation to sign it and that he could face problems if something were to happen to the trains after his inspection and before their departure. During the meeting, Lithuanian Railways decided to adopt a disciplinary decision resulting from the author’s failure to sign the inspection form on 21 September 2015.
On 25 September 2015, the author submitted a written explanation regarding his failure to sign the form on 21 September 2015. He stated that his position was unchanged and asked Lithuanian Railways not to request any further explanations on the same issue.
On 24 and 25 September 2015, the author again refused to sign the form required for the inspection of trains.
On 28 September 2015, by a formal order, the author was dismissed from his job based on the violations of 9, 11, 13, 15 and 17 September 2015. In the order, the aforementioned procedural measures and exchanges were described.
Before the Vilnius City District Court, the author claimed that Lithuanian Railways had violated articles 134 (1) and 227 (1) of the Labour Code by failing to take the author’s circumstances, including his previous unreasonable dismissal, into account and by imposing a disproportionate disciplinary penalty. He also argued that the council of the trade union of railway workers, which was headed by the author, had not expressed agreement with the author’s dismissal. The author maintained that work discipline should be ensured not by drastic measures but by creating organizational and economic conditions for efficient work and by promoting good performance. He argued that he was being persecuted owing to his trade union activities.
In its decision of 9 June 2016, the Vilnius City District Court took note of the author’s job functions, pursuant to the official job description. It noted the requirement that inspectors sign inspection forms and the author’s statements that he was familiar with the relevant rules. It made the following findings. The procedure under the relevant provisions of the Labour Code for dismissal from employment had not been violated and Lithuanian Railways had reasonably characterized the author’s acts as arbitrary and a serious disciplinary violation, thereby justifying his dismissal. On 9, 11, 13, 15 and 17 September 2015, the author had deliberately, repeatedly and systematically made the statement “I do not accept responsibility” in lieu of placing his required signature on the form, even after receiving a notice from Lithuanian Railways of the violation and consequences. He had repeated those acts on 24 and 25 September 2015, even after the meeting of 23 September 2015. A signature represented confirmation that the inspection had been done. It signified responsibility for one’s own acts, not for the acts of other persons. The author, having worked as an inspector since 1995, should have known that. He had violated the procedure of work by his own intentional, deliberate and systematic acts, without any objective justification. Lithuanian Railways had lost trust in him. He had been punished on numerous occasions for previous disciplinary violations. The author had chosen to express himself in inadequate and conflicting ways during the hearing. There were no circumstances that proved that the author had been persecuted owing to his activity in the trade union. He had not been the target of any reprisals. Lithuanian Railways had not placed any restrictions on his actions.
In its decision of 28 December 2016, the Vilnius Regional Court made the following findings. The author’s disagreement with the organization of inspection work by Lithuanian Railways and his activity in the trade union did not exempt him from performing his direct responsibilities. He had acted in an arbitrary manner, as he had not complied with the official work standards. Lithuanian Railways had given notice to the author that his refusal to comply with the requirements would be considered arbitrary. His explanation of his conduct did not concern the essence of his job duties, which required him to sign the relevant form. An inspector’s signature indicated completion of the inspection by the inspector during their shift. If one followed the interpretation of the author, he would be exempt from part of his job responsibilities and his failure to provide a signature would mean that no inspection had been carried out. By writing, “I do not accept responsibility,” the author was seeking the same objective that he had failed to reach while acting as head of the trade union. Namely, he was seeking to introduce a rule whereby all acts in the company would be formalized through transfer and acceptance acts. That purpose could not be considered to protect the interests of all employees. Moreover, the author was pursuing that objective in violation of the requirements under domestic law. Under article 229 of the Labour Code, an employer had the power to organize the work of its employees. By failing to perform his job duties, the author had exceeded his powers. No evidence in the case file indicated that the author had been dismissed in connection with his membership in the trade union or his labour complaint against Lithuanian Railways. The disciplinary penalty was not too severe, given the activity of Lithuanian Railways, the impact of the author’s job responsibilities and the possible consequences that could arise in the case of improper technical inspection of the train carriages and brakes. The author had, on numerous occasions, failed to follow the requirements set forth in the operating technology standards. His explanations on 25 September 2015 showed his disrespectful treatment of his colleagues and his inability to maintain a business-like atmosphere. He admitted that he was deliberately failing to accept responsibility for the failure to perform his responsibilities.
In its decision of 10 November 2017, the Supreme Court made the following findings. The lower courts had reached reasonable conclusions. The author’s job responsibilities related to railway transport safety and thus had to be performed in strict compliance with the law. The factual circumstances established by the lower courts, combined with the applicable legal standards, indicated that the disciplinary violation of the author had been reasonably characterized as arbitrary and recognized as a serious disciplinary violation. The author had intentionally committed the violations on numerous occasions, even after receiving warnings not to do so. He had disregarded the warnings. His employer had no reason to expect that he would not violate the work procedure in the future. The objectives of disciplinary liability would not have been achieved in the author’s case by a less severe penalty. The lower courts had examined the author’s circumstances in relation to his trade union activity and criticism of his employer before concluding that those circumstances had not influenced the penalty imposed.
On 8 January 2016, Lithuanian Railways issued a statement of the disciplinary violations that had been committed by the author. He had not complied with the requirements of various legal acts and official work procedures. According to the statement, Lithuanian Railways had imposed disciplinary penalties on the author on 12 July 2002, 23 September 2002, 1 October 2003, 15 September 2006, 3 May 2010, 12 April 2011, 1 February 2012, 20 February 2012, 30 October 2012, 2 May 2014, 18 May 2015, 11 August 2015 and 28 September 2015. The disciplinary penalties had been imposed on the author both before and after his involvement in trade union activities. That involvement began on 27 July 2011.
At the material time, i.e. on 1 January 2015, 43 trade unions were active within Lithuanian Railways. On that date, the trade union headed by the author had as few as 73 members in the company, whereas on the same date, the remaining 42 trade unions had as many as 4,490 members in the company. Those 42 trade unions were uniting into trade union federations, while the trade union headed by the author remained isolated.
The State party properly guarantees the right of association at the domestic level, fully implementing its international obligations. On 26 September 1994, Lithuania ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) of the International Labour Organization. Domestic courts provide effective remedies when the consent of trade unions to the dismissal of an employee is not sought as required.4
- Supreme Court of Lithuania, Case No. 3K-3-300/2014, Judgment, 30 May 2014. ↩
Article 19 of the Covenant does not apply in the author’s case because his dismissal in 2015 was not connected with his activity in the trade union.5 The State party recounts the relevant circumstances noted by the domestic courts. The right to hold an opinion should be distinguished from deliberate, intentional and systematic violations of domestic laws. The intentional disregard of domestic standards relating to the performance of direct job responsibilities, in a context in which the health and safety of railway passengers is at stake, cannot be equated to an opinion. The State party explains at length its position that the author’s dismissal was lawful, was in pursuit of a legitimate aim and was proportionate. Under article 238 of the Labour Code, when a disciplinary penalty is imposed, the seriousness, circumstances and consequences of the disciplinary violation, the fault of the employee and the employee’s work history must be considered. The author’s argument that the domestic courts failed to assess the effect of his disagreement with the administration on the disciplinary penalty imposed is unsubstantiated. Quite to the contrary, all three courts examined that issue.
- European Court of Human Rights, Augustė v. Lithuania, Application No. 65717/14, Judgment, 26 February 2019, paras. 32–37; and Petropavlovskis v. Latvia, Application No. 44230/06, Judgment, 13 January 2015, paras. 75–87. ↩
The author was never forced to take responsibility for the actions of third parties. If something had happened to the trains after the author’s technical inspections, the employer would have conducted an examination and appropriate legal action would have been taken against those responsible. During the domestic proceedings, Lithuanian Railways confirmed that no inspector-repairman of trains at the Vaidotai railway station had ever been accused of any actions taken by third parties after the completion of a technical inspection. In its submissions to the courts, Lithuanian Railways also explained that the railway infrastructure was of particular importance and required specialized security. A separate company was tasked with ensuring the security of the Vaidotai railway station and infrastructure, both during the day and at night. The company specialized in providing security services to railway stations in Lithuania. The railway site was also fenced. The author’s fear was thus wholly unsubstantiated.
With respect to article 22 of the Covenant, the author erroneously alleges that article 21 (1) of the Lithuanian Law on Trade Unions fails to adequately protect workers elected to the governing bodies of trade unions. International law requires effective protection of trade union officials against discrimination and negative consequences due to their union membership and their activities by means of protection of their labour relations from adverse actions, including dismissal. International law, however, does not refer to specific measures, nor does it require States to protect against dismissal in all cases.6
- The State party provides background information on the evolution of Lithuanian labour laws in the light of the shift from the former Soviet system to a democratic system. ↩
As was noted by the domestic courts, article 134 (1) of the Labour Code of 2002, which was in force at the relevant time, provides that the chairman of a trade union or the chairman of a work council cannot be dismissed during their term of office under article 136 (3) (1) of the Labour Code without the prior consent of the representative body of the trade union or work council. In the author’s case, however, that provision did not apply because his employment contract was terminated owing to a serious disciplinary violation, in accordance with article 136 (3) (2) of the Labour Code. Because the author was lawfully dismissed at the initiative of his employer for a serious disciplinary violation, the prior agreement of the trade union was not required by law.
Author’s comments on the State party’s observations on admissibility and the merits
In his comments of 29 September 2021, the author reiterates his arguments and maintains that, by expressing his opinion, for which he was dismissed, he was pursuing his objectives as a trade unionist.
Under article 19 of the Covenant, freedom of expression covers any form of the author’s signature. His handwritten statement, “I do not accept responsibility” is a form of signature.
The State party admitted that domestic legislation prohibited the dismissal of the author as a leader of the trade union, because the trade union did not consent to the dismissal. His dismissal was unlawful and was not proportionate to a legitimate aim. Because of his role in the trade union, the burden of proof should be on the State party to rebut a presumption that he was dismissed for punitive reasons. The author takes issue with additional aspects of the State party’s observations.
State party’s additional observations
In its observations of 28 January 2022, the State party maintains that the author ignored the explanations that it previously provided and made seriously misleading statements on many points. His arguments are unfounded. The author incorrectly maintained that the State party had recognized that, by failing to sign the form, he had been pursuing his trade unionist objectives. He also incorrectly asserted that the State party had recognized that the author had been dismissed as a form of punishment for refusing to change his opinion. In fact, the State party maintains its strong position that Lithuanian Railways and the three domestic courts found that the author, as an employee, had violated his job responsibilities under domestic law. The State party reiterates its explanations on that subject. It adds that the courts established that finding because the author had disregarded the established procedure for inspecting trains and the train had had to be inspected by another employee. That meant that the rhythm of the railway station’s operations had been disrupted and the same work had been performed twice. Such duplication of tasks could affect the departure times of trains. Thus, the author’s failure to fulfill his duties cannot be regarded as formal or insignificant.
Consideration of admissibility
Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol.
The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.
The Committee notes the State party’s position that the communication is insufficiently substantiated and is therefore inadmissible under article 2 of the Optional Protocol. The Committee notes the author’s claim that, when working as an inspectorrepairman for Lithuanian Railways, a State-owned company, he was routinely required to sign forms to indicate that he had inspected train carriages and brakes to verify their safety. The Committee notes the author’s assertion that, by repeatedly and deliberately writing, “I do not accept responsibility” instead of signing the forms, he was expressing a protected opinion under article 19 of the Covenant and should not have been dismissed. The Committee notes the findings of the domestic courts that, after making that written statement on several occasions, the author received written notification of the potential disciplinary consequences, was invited to provide a written explanation, was heard in an in-person meeting with his employer, subsequently repeated the same violation and was dismissed shortly thereafter. The Committee notes the relevant domestic and administrative standards and laws that established that the author’s conduct constituted an arbitrary and serious disciplinary violation that warranted his dismissal, considering all the relevant circumstances. The Committee observes that the author did not provide any objectively reasonable justification for his stated objective in writing “I do not accept responsibility” on the inspection forms. He states that he feared that saboteurs would interfere with the trains after his inspections and before their departure and that he would be falsely accused of having conducted improper inspections. The Committee notes, however, that the author began working as an inspector-repairman for Lithuanian Railways in 1995 and does not allege that he faced any type of sabotage or false accusations during those two decades of service. Nor does he indicate that he raised those concerns to his employer before deciding to make the impugned statements and refrain from certifying his inspections. The inspections were a core element of the responsibilities set forth in his job description. The Committee considers that the author has not provided any elements to substantiate his assertion that, by stating in writing, without a reasonable and objective justification, that he would not perform his ordinary and essential job duties, he was expressing an opinion that should have protected him from dismissal. The author’s claim under article 19 of the Covenant is therefore inadmissible under article 2 of the Optional Protocol.
With respect to the author’s claim that the State party violated his right to freedom of association, the Committee notes, on the basis of the information provided to it, that the dismissal of the author appears to have resulted directly from his refusal to perform an essential element of his professional duties. The Committee also notes that there is no evidence indicating that his dismissal resulted from his role or activities in a trade union nor has he provided indications that, during the disciplinary proceedings, he faced arbitrariness or bias that could have resulted from his trade union role. The Committee further notes the State party’s information that the author had been the subject of six disciplinary penalties by Lithuanian Railways before he became involved in the trade union movement in 2011. In view of the foregoing, the Committee considers that the claim under article 22 of the Covenant is insufficiently substantiated and is therefore inadmissible under article 2 of the Optional Protocol.
In the light of its findings, the Committee does not deem it necessary to examine other grounds of inadmissibility.
The Committee therefore decides: (a) That the communication is inadmissible under article 2 of the Optional Protocol;