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01.2.2018

The Ombudsperson published an opinion, in the capacity of the friend of the court (Amicus Curiae), related to the interpretation of the work experience concept, in the context of job vacancies, in the public institutions

The Ombudsperson, in the capacity of a Friend of the Court (Amicus Curiae), has delivered today to the Supreme Court of Kosovo, Court of Appeals, Basic Courts and to the Ministry of Public Administration, the Opinion with regard to the Issue of Interpretation of the “work experience” concept in the context of job vacancies in public institutions

The dilemma whether the work experience acquired prior to graduation should or should not be calculated as a work experience is the subject of this Opinion, the purpose of which is to provide legal aid for setting the possibility of the accurate interpretation of the concept “work experience” that in reviewed context can be quite challenging for the law enforcements, with assumptions of possible human rights violations.

The Independent Oversight Board of Kosovo (IOBK) and the Department of Administrative Affairs of the Basic Court in Prishtina, have expressed their stand that "work experience" does not encompass the experience gained prior to graduation.

The Ombudsperson ascertains that it is not a convincing argument that calculation of the work experience prior to graduation is in contradiction with the principles of Law on Civil Service in the Republic of Kosovo and that professional abilities can be obtained solely after their graduation.

According to the Ombudsperson, provisions of the Law on Civil Service and the Law on Salaries of Civil Servants make clear that it is Government’s responsibility, that through issuance of the sub-legal acts, set minimal criteria for each job position, within classification of all job posts. This criteria determination has been set by the Government through the Regulation No. 05/2012 on Classification of Jobs in Civil Service. This classification determines totally 14 salary grades. For each grade, the minimum conditions for the job positions of that grade are determined, including university degree as well as certain period of work experience. But, in none of the case and for none of the grade has been stipulated that work experience should be gained indispensably after the graduation. Thus, the stand of the IOBK as well as of the Basic Court on this issue is groundless.

Furthermore, the Ombudsperson points out that for all jobs posts in the civil service, the condition that the candidates have to accomplish a certain period of work experience is an excluding condition, in the sense that candidates who do not have the appropriate experience are not eligible to be part of the competition. Therefore, in order that the assessment body can take in consideration as many candidates as possible, it is mandatory to interpret the concept of "work experience" in the widest possible manner.

Such a liberal interpretation does not mean at all that the assessment body should assess equally experiences of all candidates. It is quite normal for the assessment body to compare all candidates who exceed the minimum work experience line, to take into account the nature and the quality of experience that each candidate discloses in the application. This process of detailed comparison is not hindered at all by the broad interpretation of the concept of "work experience”.

Additionally, a close interpretation of this concept, according to which work experience gained prior to graduation categorically cannot be calculated, presents the risk that the assessment body for a specified job position lacks sufficient number of candidates for comparison, because of the fact that a large number of candidates may have been excluded due to the lack of minimal work experience as interpreted by the IOBK and the Court. Therefore, the principles of "merit" and of "professional ability", correctly understood, not only that do not support the stand of the IOBK and the Court, but these principles positively require that the term "work experience" include the experience gained prior to graduation.

An exact formula doesn’t exist, and cannot exist, that can be applied to the entire civil service. This is an issue that must be left to the discretion of each institution which announces a vacancy and each evaluation commission since the institution and the evaluation committee, ought to be experts and professionals in the field of the job position which ought to be filled.

The Opinion in the capacity of Friend of the Court (Amicus Curiae) has been delivered to the above stated responsible authorities. The same has been distributed to media and published in the official web page, in: http://www.ombudspersonkosovo.org/repository/docs/207-2018,_Opinion_334549.pdf
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