Private school teachers and dismissals - KOUMENTAKIS AND ASSOCIAT

Recent legislation addresses the conditions for the termination of employment contracts of private school teachers. (Basically: the possibility and conditions of their replacement). Some of the trade unionists (and some of the politicians) are still supporting that such provisions are absurd. They underline, in particular, the need to safeguard the level of private education provided. Also: the, created by this law, “unfair conditions”. The teachers’ union (Federation of Private Educational Officials of Greece) opposes the new law with full force. Mobilizations are already being announced for its abolition.

Proponents of the newly introduced provisions, on the other hand, have been working to make the actual transcript of this statement available online. Removal of old problems and distortions.

The conflict remains intense.

What, in fact, is true?

The challenges in the field of education

The (late) start of the new school year is just around the corner.

School as we knew it (teaching students in person) is no longer granted – and the pandemic is the reason why.

Now more than ever, we are concerned with intertemporal issues (seen, however, from a new perspective). The modernization of Education, the smooth operation of schools, their technological equipment are just some of them.

We do acknowledge that there are some greater issues: Ensuring, for example, the life and health of students and teachers. As well as stopping the pandemic.

The field of private education is concerned with another important issue: The change of the core of its operation. This issue has, to some extent, overshadowed the aforementioned-more critical issues. At least that is what the ones affected are seeking to prove.

Changes in private education

The recent law 4713/20 seeks a substantial modernization of private education. It modified some of the problematic and outdated regulations regarding private education’s operation. It replaced some others.

Among the privileges abolished is the (“de facto”) permanence enjoyed by private school teachers. A “permanence” due to the impressive, indeed, restrictions (and conditions) of terminating their employment contracts. Even for the ones among them who were completely inadequate.

Those who (consider to) have lost privileges due to the introduction of this law are, unanimously, attacking it. And so are their (willing) supporters. We have already talked about the lost privileges and their holders in our previous article. And so have we about their motives.

There are those who, out of conviction, include themselves in the ever-shouting.

There are also those who, soberly, record their concerns. Are they reasonable? Is there adequate protection against a vindictive termination of their employment?

Let us try, in this case too, a structured and argumentative approach. On the basis of the only safe criterion: the existing institutional framework.

The termination of contracts (more precisely: the replacement) of private school teachers

Article 10 of Law 4713/2020

The relevant provision, which replaces the previous article 30 of Law 682/1977, stipulates that:

«1. Teachers in private and equivalent schools are recruited and employed under private law contracts of indefinite duration and are subject to the issues of recruitment, employment and termination of their employment in accordance with the applicable provisions of the common labor law provisions, subject to special provisions for private school teachers and in particular, of article 36 of this law “.

During the judicial review of the legality and abuse of the termination of the employment contract of the private school teacher of par. 1, it is examined in particular, whether the termination is an unfair employer reaction to legal and contractual behaviors of the private school teacher. “

The transitional provisions

Article 36 of Law 682/1977 provides that:

«1. Every two-year employment contract of a private school teacher, according to par. 2 of article 30 of law 682/1977, which is expires within 2020, is considered to expire on 31.8.2020 and the legal compensation is paid, unless the parties agree on the conversion of said employment contracts to indefinite ones.

From the entry into force of the present, an employment contract of a private school teacher, of a two-year duration, according to par. 2 of article 30 of law 682/1977, which expires within 2021, is automatically converted into an indefinite contract.
From the entry into force of the present, any procedure for checking the legality and the abusiveness or non-termination of the employment contract of a private school teacher, which is pending before the independent Committee of article 30 of law 682/1977, is abolished “.

In brief

(a) The employment contracts of private school teachers are now terminated, as are those of other employees – “common mortals” in the private sector.

(b) Special mention is made and significant sensitivity is shown for the judicial review of the (possible) abuse of the termination of their employment contracts.

The pathogens that the new regulations were called upon to address

Article 10 of Law 4713/2020 seeks to deal with the “wrong doings” of the past:

(a) resulting from the (unjustifiably) privileged treatment of private school teachers over other employees

(b) which created impressive (gradually, in fact, reinforced) restrictions on the possibility and process of terminating private school teacher’s employment contracts

(d) which have (“de facto”) achieved for teachers the permanent tenure applicable to civil servants.

Restrictions on the termination of private school teachers’ employment contracts

If one refers to the provision of article 30 of law 682/77 and its pre-existing forms (in combination with article 33 – until its abolition), they will be impressed by the ingenuity of its authors to achieve the permanence of private school teachers. It would not be an exaggeration to argue that it could easily have been the subject of a dissertation entitled: “The inculcation of entrepreneurship by the negative achievements of trade union action and its embrace by politicians.”

Over the years we come across (legally required) fixed-term contracts for teachers. Let’s take a brief look at the restrictions and conditions for terminating their employment contracts:

(a) Numerical constraints

The numerical constraints on termination of private school teachers’ employment contracts are quite interesting. Let’s look at two related examples:

(i) The provision of art. 13 §1 Law 2986/2002 (valid until 2010):

“(B) At the end of the four-year period (note: of the then valid fixed-term contract of the private school teacher) the owner of the private school may terminate the contract without justification for only 33% of the teachers who complete six years of service. In case two teachers complete six years, the contract of one of them may be terminated. In case only one teacher completes six years and another teacher of the school completes six years within the following two years, it is possible to terminate the contract of one of the two).

(ii) The provision of art. 47 §16 Law 3848/2010:

“At the end of each school year it is possible to terminate the employment contract of one teacher per private educational unit and per level of education… Private junior high schools and high schools of the same seat, of the same owner and with the same address are considered to be a single educational unit.”

(b) Procedural conditions

Even more provisions that guaranteed the “de facto” permanence were in place in the last three years and until the entry into force of law 4713/2020. Extensive reference to them was made in our previous article. These assurance provisions can be summarized in the two procedural conditions of the valid termination of private school teachers’ employment contracts.

To recall (very briefly) the provision of article 30 of law 4472/2017:

«1…

Private school teachers …. enter into a fixed-term contract, which… and expires on the 31st of August of the second year following their recruitment. At the end of the two years the owner can terminate the contract. After the lapse of the two years and if the contract is not terminated according to the above, it is automatically converted into a contract of indefinite duration.
The contract of indefinite duration can be terminated only for the following reasons:

…

e) Private school teachers are dismissed by the owner of the school they serve due to:

…

dd) didactic, pedagogical or professional deficiencies based on at least two (2) reports and concerning at least two (2) consecutive teaching years with criteria determined by the Institute of Educational Policy, the first of which is compiled by the principal of the school unit and is notified to the competent educational project coordinator who has the scientific responsibility of the relevant branch and the second is drawn up by the school director and notified to the above educational project coordinator, who adds an additional report, if they deem it appropriate and especially if their opinion differs from that of the Director.

…

The legality of the termination of the employment contract for the reasons provided under a` and e`.dd` of paragraph 3 is judged by an independent Commission, which examines whether the employment contract was terminated legally and whether the termination is abusive or not and decides on the matter.

This Committee is established by a decision of the Minister of Education and Religions, which is issued within one month from the publication of the present, and consists of:

a) One (1) Judge of the Court of First Instance, as President, with their deputy, serving in the Labor Disputes Department of the Athens Court of First Instance….
b) Two (2) Judges of the Court of First Instance serving in the Labor Disputes Department of the Athens Court of First Instance with their deputies….

One (1) representative of the Federation of Private Educators of Greece indicated by a decision of the Federation of Private Educators of Greece and one (1) representative of the most representative employers’ organization nominated by its decision shall be present as observers, without the right to vote, at the meeting of the Committee.

…

The above Committee also takes into account the official reports, and meets and decides obligatorily within ninety (90) calendar days from the termination and submits its proposal to the competent Director of Education in which it expresses its judgment on the legality of the termination of the employment contract, as stated above. ….

Dismissals of private school teachers that take place without following the above procedure are invalid. ”

In simple words: If, by any chance, a teacher proved (from 2017 onwards) inadequate immediately after being hired, their replacement was possible (at best) after two years and three months.

In conclusion

The legislator, when trying to tackle the issue of private education, had multiple distortions and pathogens to manage.

Among them, the (de facto) inability to replace inadequate private school teachers. (Even if one does not rush to wonder if there were / are such). Also: inequality in relation to other employees in the private sector (health professionals, for example, to whom we owe so much). And yet: the multiple problems that arose in the exercise of business activity and the limited, only, assistance in the provision of high quality services in private education.

The problem seemed complicated…

The explanatory memorandum of law 4713/2020

The solution to the (apparently only) complex problem was (and indeed has proved to be) disarmingly simple. It was limited to one sentence and just twelve words:

Inclusion of private school teachers in the protective field of labor legislation.

But what were the legislator’s thoughts?

Let us refer to the explanatory memorandum of this particular provision in question. There we will identify the distortions that, in their view, the legislator aims to cure. The medium they use. The purposes of this provision (: of the new, that is, Article 10). So, what is the ratio of this provision?

As stated in the explanatory memorandum, the inclusion of the private school teachers’ employment relationship in the common labor law is intended to restore the balance among:

(a) the managerial right of the entrepreneur-employer;

(b) the parallel safeguarding of labor rights, in accordance with the provisions of labor law and Law 682/1977 of private school teachers, but also

It is also noted that the previous legislation in the field of private education affected (insofar as they went beyond the principle of proportionality) the core of the business activity of private schools. And it is not an accidental activity but one that is constitutionally protected (article 16 §8 & 5 §1 of the Constitution). And this by pointing out that the private schools in our country, in contrast to other countries, carry entirely the business risk.

The (sufficient?) Protection of private school teachers from the termination of the employment contract of an indefinite period

Since the submission of the relevant bill of Law 4713/2020, specific voices have adopted (and continue, even today, to cultivate) the position on the now free dismissals of private school teachers. The position, also, of the insufficient protection of the private school teacher from the possible unjustified termination of their employment contract by the respective headmaster.

But what is the truth?

Can the current headmaster, unjustifiably and without restrictions, dismiss / replace their teachers?

Doesn’t labor law, which now includes private school teachers (like all other employees), provide some protection?

The headmaster has the right to say to their teachers: “LEAVE !!!” and are they really obliged to leave with their heads bowed?

The answers to the above questions are obviously negative. Labor law has never been inadequate in protecting employees from illegal dismissals. The law of termination requires the fulfillment of a series of conditions (formal and substantive) in order for the termination of an employment contract to be lawful.

The existing institutional framework

Conditions of termination of employment-in general

Let’s take a look at what is provided by the provision to which all the employees of our country are under (article 5 §3 par. A of law 3198/1955):

«3. The termination of the employment relationship is considered valid, as long as it has been made in writing, the due compensation has been paid and the employment of the dismissed person has been registered in the Greek Social Security Agency payroll or the dismissed person is insured”.

Regarding the (now in place) conditions of dismissal / replacement of a teacher

The dismissal / replacement of a private school teacher with an employment contract of indefinite duration is subject to formal and substantive conditions. Specifically:

Formal conditions:

The common labor laws require the observance of three formal conditions in order for the termination of the employment contract of indefinite duration to be valid. These are:

(a) The observance of a written document of the termination.

(b) The observance of a certain notice period (where provided), after the expiration of which the employment contract may be terminated.

Substantive condition – Restriction of the abusive exercise of the employer’s right:

In addition to the three specific, formal conditions, the validity of the termination of an indefinite contract requires the existence of a fourth, negative-substantive condition. This is the lack of abuse, as it is reflected in the general provision of article 281 of the Civil Code but also in the special provision of article 30 par. 2 of law 682/1977-as in force.

According to the provision of article 281of the Civil Code:

“The exercise of the right is prohibited if it obviously exceeds the limits imposed by good faith or good morals or the social or economic purpose of the right.”

Therefore, the right to terminate the employment contract for an indefinite period of time by the employer – school owner must be respected and not exceed the above limits. Otherwise, their practice is considered abusive.

In line with the above, the current Article 30, paragraph 2, refers to the judicial review of the legality and abuse to which the termination of the private school teacher is subject. As explicitly and specifically it is provided, “During the judicial review of the legality and abuse of the termination of the private school teacher’s employment contract of par. 1, it is examined in particular whether the complaint constitutes an unfair employer reaction to the lawful and common conduct of the private school teacher”.

In short, the termination of an employment contract of indefinite duration in Greece is valid with no need for a special reason to be presented (with reference to the open debate on Article 24 of the Revised European Social Charter). This does not mean, however, that it is not subject to substantial restrictions. Much more, when that adequate protection is not provided to employees. The jurisprudence has proved this for a long time now.

Employees of private clinics, doctors and nurses, offer their services in the field of health – for which specific constitutional provisions are provided.

Journalists working in the field of journalism offer their services in the field of press-for which, also, specific constitutional provisions are provided.

Employees in private schools offer educational services – for which specific constitutional provisions are provided.

Private sector employees are generally subject to the protective provisions of labor law. Doctors, nurses, journalists have always been subject to the protective provisions of labor law.

Private school teachers are now too…

The removal of pathogens and distortions of almost half a century is a fact!

The catalysis of unjustified privileges and distortions, of a corresponding duration, is too.

Let us celebrate the restoration of equality.

But mainly of logic!

Stavros Koumentakis
Managing Partner

P.S. A brief version of this article has been published in MAKEDONIA Newspaper (September 13, 2020).

Disclaimer: the information provided in this article is not (and is not intended to) constitute legal advice. Legal advice can only be offered by a competent attorney and after the latter takes into consideration all the relevant to your case data that you will provide them with. See here for more details.

ArticlesPrivate School Teachers & Dismissals (: and the absurdity of such argued…)