Dismissal of a train driver who went on strike led to a violation of his right of association


Ognevenko v. Russia 20.11.2018 (no.  44873/09)

see here


The case concerned Mr Ognevenko’s dismissal as a train driver for disciplinary breaches, including
taking part in a strike.

The Court noted that train drivers and some other types of railway worker were included in
occupations which were prohibited from striking. That restriction had not been sufficiently justified
by the Government and was in conflict with internationally recognised labour rules. The situation
had led to the courts only being able to examine Mr Ognevenko’s formal compliance with the law
without carrying out any balancing exercise.

Mr Ognevenko had been punished with dismissal because he had gone on strike, which was the
second disciplinary offence he had committed. Such sanctions inevitably had a “chilling effect” on
others who might consider striking to protect their interests. Overall, the dismissal had been a
disproportionate restriction on his rights and had violated Article 11


Article 11

Article 6


The applicant, Aleksey Anatolyevich Ognevenko, is a Russian national who was born in 1972 and lives
in Zheleznodorozhnyy (Russia).

Mr Ognevenko was a train driver for Russian Railways in the Moscow Region and was a member of
the trade union, Rosprofzhel.

In April 2008 the union decided to a call a strike after the failure of wage and bonus negotiations.
The railway company did not apply to the courts to have the strike declared unlawful and Mr
Ognevenko took part in it. He arrived for work on the day of the strike, but refused to take up his
duties. The strike caused delays in the sector where he worked.

In July 2008 Mr Ognevenko was dismissed for two breaches of disciplinary rules, one committed in
2007 which had nothing to do with union activities and the other for the refusal to take up his duties
during the strike. He challenged his dismissal for taking part in the strike, but in August 2008 the
first-instance court dealing with the case found that it had been lawful.

The court referred to the Railway Acts of 1995 and 2003, which for safety reasons prohibited strikes
by personnel responsible for the circulation of trains, shunting and services to passengers, which
covered the applicant as a train driver.

The court also referred to a report by a prosecutor which stated that the strike had led to cancelled
and delayed trains and had violated the rights of others. Passenger safety had also been threatened as people had had to gather in large numbers on platforms. An appeal by Mr Ognevenko was dismissed in January 2009.


Article 11

The Court first noted that this provision of the Convention also covered trade union membership
and that it protected strike action. While national authorities could under the second paragraph of
Article 11 impose lawful restrictions on certain categories of State employee, such restrictions had to
be justified by convincing and compelling reasons.

In Russia certain categories of railway worker were banned from striking and the Court had to
determine whether such an interference with Convention rights was justified. The Government
argued that it was, citing the fact that railway transport was an essential service which bolstered the
economy and affected other people’s interests, including their safety.

The Court observed that the International Labour Organization and the European Committee of
Social Rights accepted that certain occupations, such as the armed forces or police, could be
subjected to restrictions on striking. However, neither body considered the transport or railway
sector to be an essential service and both had criticised Russia for banning such workers from
striking. The Court saw no reason to depart from international practice as to the definition of an
essential service and to consider railway transport as such a service.

Even if that were not the case, a restriction such as a complete ban on striking required strong
justification and the prospect of financial losses from industrial action could not be a sufficient
reason. When looking in particular at the strike the applicant was involved in, the Court found that
the Government had not substantiated its argument that the action had caused damage in the form
of delayed passenger and freight trains or that the regulation of access to platforms was outside
Russian Railways’ control.

The Court also examined the quality of the decision-making process behind the general measure of
banning certain railway workers from striking and the decision to dismiss Mr Ognevenko.
In particular, the Government had not provided any information to explain that policy choice,
whether it had considered alternatives to such a prohibition, or whether railway workers had
safeguards, such as conciliation and arbitration, to compensate them for the lack of a right to strike.

Mr Ognevenko’s case illustrated these issues. Ultimately the courts had only been called on to look
at his formal compliance with the law and had not been able to balance his right to freedom of
association with competing public interests. He had been dismissed for a breach of disciplinary rules,
a measure which inevitably had a “chilling effect” on union members taking part in industrial action
to protect their interests. Punishing Mr Ognevenko in that way was a disprortionate restriction on
his right to freedom of association and had led to a violation of Article 11.

Other articles

The Court rejected a complaint by Mr Ognevenko under Article 6 (right to a fair trial) about the
courts having no authority to declare the strike unlawful, meaning they were not a “tribunal
established by law”, as manifestly ill-founded. There was nothing to show that the courts did not
have such authority and they had anyway only ruled on the lawfulness of his taking part on the
strike, not on the lawfulness of the industrial action as a whole.

Just satisfaction (Article 41)

The Court held by six votes to one that Russia was to pay the applicant 2,000 euros (EUR) in respect
of pecuniary damage, EUR 6,000 in respect of non-pecuniary damage and EUR 2,500 in respect of
costs and expenses.

Separate opinion

Judge Dedov expressed a dissenting opinion(echrcaselaw.com editing). 


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