Amended labour law comes too late for former RFE/RL employees

23-02-2010

Two former foreign employees of the Prague-based, US broadcaster RFE/RL are fighting a legal battle against their former employer, accusing the radio station of discrimination. The argument is related to their contracts with the radio station, and the way the Croatian and Armenian nationals were fired. They claim that they and hundreds of other RFE Prague-based employees from non EU countries find themselves in a legal vacuum. But it seems that they fell into a gap in the system – which in the meantime has been fixed.

When Radio Free Europe/Radio Liberty moved to the Czech capital from Munich, Germany in 1995, hundreds of broadcasters, editors and other staff came with it, and more have joined the station since then. Most of them come from the radio station’s target countries, such as Afghanistan, former Soviet republics of central Asia, Iran, Iraq and others. Among them was Armenian broadcaster Anna Karapetian, who joined RFE in 1994. In Prague, the radio station hired Croatian Snejzana Pelivan as a marketing manager. In 2004 and 2005, respectively, they were fired without prior warning or without being given a reason. Snjezana Pelivan explains.

Snjezana PelivanSnjezana Pelivan “I was fired from Radio Free Europe five years ago, and I believe it was wrong termination, and I just wanted to sue RFE on that basis. I tried to do that at both Czech and American courts. But I consulted some lawyers and I found out that I cannot sue RFE in the US because I’m not a US citizen and worked outside US territory. So the only chance was to go to Czech courts, because at the time I was legally working in the Czech Republic.”

Taking her case to a Czech court, Ms Pelivan claimed she was illegally fired. In 2006, her lawsuit was rejected by a court in Prague, and the case eventually got to the Czech Supreme Court, which ruled in December 2008 that the termination of her contract was legal.

“Czech courts at all levels decided that I cannot apply Czech employment law because I singed a contract with RFE that was governed by US labour legislation.”

The case of Anna Karapetian, a broadcaster for RFE’s Armenian service, is similar. Ms Karapetian joined RFE in Munich, and relocated to Prague with the radio. In 2005, after she returned from her holiday in Armenia, she was also fired without being given a reason.

“I came back from Armenia, from my vacation, and I got the notice of termination all of a sudden. I had been working there for nearly 12 years. When I received ‘a farewell agreement’, in which I had to promise not to tell anyone anything about my case – except for my husband – not to go to any court to protect my rights, I said, uh-oh. I was fighting for other people’s rights for 12 years, and now when it came to protecting my rights, I have to take some sort of ‘shut-up’ money and leave the human rights radio station? It would mean that I doing nothing here for 12 years.”

Just like Snjezana Pelivan, Ms Karapetian also took her case to court which ruled in favour of her former employer, and she is now waiting to hear from the country’s Supreme Court to which she appealed. The case of Ms Pelivan, however, has already made it to the Czech Constitutional Court, which last March rejected her complaint.

The situation angered Czech Senator Jaromír Štětina, himself a former reporter for Radio Free Europe. Mr Štětina, a champion of human rights causes, wrote a letter earlier this month to the US Senate, pointing out what he considers to be unfair employment practices of the US-funded broadcaster, and little protection from being fired at will.

“I think RFE works with three categories of journalists. One of them are American journalists, another are Czech journalists. But the largest group of journalists are from various countries – the Balkans, from Afghanistan, from Russia, the Caucasus countries, and they have no legal protection against being fired from the radio station. So that’s why I sent a letter to several US senators, including John Kerry, and asked them to do something about this group of journalists.”

Radio Free Europe naturally disagrees with the allegations that it discriminates against its non-US, non-EU staff. Their legal situation is not different from those who work for other foreign companies operating in the Czech Republic. In theory, they can choose whether the contracts they sign with their employer will be governed by Czech labour law or law from other countries – in this case, the United States. Julian Knapp is the RFE/RL spokesman.

Julian KnappJulian Knapp “Generally speaking, local hires fall under Czech law – local hires being Czech nationals, and generally speaking, international hires – US citizens and also people from third countries, also fall under the US labour law.”

In December 2008, the Czech Supreme Court reached a verdict on the case of Snjazana Pelivan. The court ruled that her dismissal did not violate Czech laws, in particular the 1963 Czech act on international procedural and private law. It says that no labour contract can ignore the basic principles of employee protection. These principles are known as ‘mandatory rules’ – but until the Supreme Court’s verdict, no one knew whether they also covered the way Ms Pelivan’s contract with RFE was terminated. Jaroslav Škubal is a lawyer for PRK Partners, a Czech law firm specializing in labour law and a member of the international Ius Laboris association.

“The problem is that even though the parties choose a foreign law, there is a basic principle that an employee should not lose protection guaranteed by the Czech ‘mandatory rules’. And the problem we had until the [Supreme] court’s decision was that we didn’t know which rules were mandatory. But the court said that the Czech rules regulating dismissals or terminations of employment, were not considered mandatory rules.”

To put it simply – the way Snjezana Pelivan and Anna Karapetyna were fired does not seem to be in violation of Czech law valid at the time. Jaroslav Jakubka is a lawyer for the labour law department of the Czech Ministry of Labour and Social Affairs.

RFE/RL building in Prague, photo: www.rferl.orgRFE/RL building in Prague, photo: www.rferl.org “The controversy is based on the fact that the 1963 Czech legislation makes it possible to chose which law shall govern the individual labour contracts. That means whenever both the employer and the employee choose the law of a particular country, which happened in this case, then both parties commit to adhering to that particular law. Therefore, Czech labour law cannot be applied here, albeit favourable for the employee.”

But things have changed since then. Given the increasing number of similar cases throughout the EU, the European Parliament addressed the issue in 2008.

“Precisely because this situation was considered morally unjust, a regulation by the European Parliament and Council was issued in 2008. This means that any labour contract, governed by foreign law, can no longer ignore local provisions that are more favourable for the employee. In other words, employees can no longer be deprived of protection by choosing laws from other countries.”

The dispute between RFE/RL and two of its former employees originated before this regulation was implemented by the Czech Republic, and therefore does not apply to them. Another question is whether RFE’s treatment of its employees is not questionable on moral grounds. Anna Karapetian again.

“All of us non-US and non-Czech employees get the so-called uniform agreements which are covered by US laws. We are happy to get that kind of contracts because we know we are protected with American laws. Bu the case is that only the employer knows that after we sign that contract, we are being placed in a legal vacuum. We are not protected by US legislation because there is an American law that says all foreign employees working for an US organization outside the United States, are not covered by any American laws.”

Ms Pelivan filed a complaint with the European Court for Human Rights in Strasbourg, and is waiting to hear whether the case will be heard. Meanwhile, the Prague-based US broadcaster denies any accusations of mistreating its employees. Although the station appears to be on firm ground legally the question remains whether it should not adopt a more considerate approach to its foreign staff, since the nature of their work - promoting democratic values in unfree societies – often prevents them from returning to their own countries after they stop working at the radio.

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