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SOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS

of March 5, 2009 No. P-316/2009

About legal regulation of dismissal wage payment

Constitutional court of the Republic of Belarus as a part of the chairman - the Chairman of the Constitutional Court Miklashevich P. P., the vice-chairman Maryskin A. V., Boyko T. S. judges., Izotko V. P., Podgrushi V. V., Ryabtsev L. M., Sergeyeva O. G., Tikovenko A. G., Shuklina V. Z. based on part eight of article 22 of the Code of the Republic of Belarus about judicial system and the status of judges considered questions of legal regulation of dismissal wage payment in case of termination of the employment contract.

Having analysed relevant provisions of the Constitution of the Republic of Belarus, the Labor code of the Republic of Belarus (further - shopping mall), the Decree of the President of the Republic of Belarus of July 26, 1999 No. 29 "About additional measures for enhancement of employment relationships, strengthening of labor and performing discipline" (further - the Decree No. 29), resolutions of Council of Ministers of the Republic of Belarus of August 2, 1999 No. 1180 "About approval of the Approximate form of the contract of the employer with the worker" (with subsequent changes and amendments) and of September 25, 1999 No. 1476 "About approval of the Regulations on procedure and conditions of the conclusion of contracts of employers with workers" (with subsequent changes and amendments), resolutions of the Plenum of the Supreme Court of the Republic of Belarus of June 26, 2008 No. 4 "About practice of consideration by courts of the employment disputes connected with contractual form of hiring of workers" the Constitutional Court established the following.

1. The constitution of the Republic of Belarus according to the purposes of the social constitutional state (Article part one 1), guaranteeing the rights and freedoms of citizens of Belarus enshrined in the Constitution, the laws and provided by the international obligations of the state (Article part three 21), determines that restriction of the rights and personal freedoms is allowed only in the cases provided by the law for the benefit of homeland security, public order, protection of morality, health of the population, the rights and freedoms of other persons (Article part one 23).

41, 47 Constitutions are provided by Articles the rights of citizens to work, to social security, to protection of the economic and social interests. The specified rights are supplemented and guaranteed by the relevant standards of shopping mall.

In particular, according to part three of Article of 48 shopping malls the obligation is assigned to the employer to pay to the worker dismissal wage in the amount of at least two-week average earnings in case of termination of the employment contract in connection with violation by the employer of the legislation on work, the collective or employment contract.

According to part one of Article of 41 shopping mall the worker has the right to demand termination of the terminal employment contract ahead of schedule in case of his disease or disability interfering performance of work according to the employment contract, violations by the employer of the legislation on work, the collective or employment contract and on other reasonable excuses. At the same time it is provided in part three of Article of 41 shopping mall that in case of termination of the terminal employment contract in the presence of such reasonable excuse as violation by the employer of the legislation on work, the collective or employment contract, the employer pays to the dismissed worker dismissal wage in the amount of two-week average earnings.

Thus, the worker's right to dismissal wage in case of termination of the terminal employment contract in connection with violation by the employer of the legislation on work, the collective or employment contract is fixed by the legislator in shopping mall.

Content of regulations of part three of Article 41 and part three of Article of 48 shopping malls testifies to their imperative nature that guarantees the worker's right to dismissal wage in the amount of, the established shopping mall.

2. According to part two of Article of 17 shopping malls the contract is kind of the terminal employment contract which is signed according to the procedure and on conditions, stipulated by the legislation about work.

According to the note to Item 1 of the Decree No. 29 contracts - the employment contracts signed in writing for the term determined in them and the containing features in comparison with general regulations of the legislation on work. In Regulations on the procedure and conditions of the conclusion of contracts of employers with workers approved by the resolution of Council of Ministers of the Republic of Belarus of September 25, 1999 No. 1476, determination of the concept "contract" it is specified and added. According to Item 2 of this Provision the contract is the employment contract signed in writing for the term determined in it containing features in comparison with general regulations of the legislation on work and providing specific minimum compensation for deterioration in legal status of the worker.

Therefore, the contract along with common features of the terminal employment contract has features which characterize it as kind of this agreement. The procedure and conditions of its conclusion, and also the minimum compensation for deterioration in legal status of the worker belong to such features of the contract established by the legislation, in particular.

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