INTERPRETATION OF THE CONSTITUTIONAL PRINCIPLE OF FREEDOM OF ENTERPRISE AND THE OBLIGATION TO PROMOTE ENTREPRENEURSHIP IN ASSESSING THE LAWFULNESS OF EMPLOYEE DISMISSAL BASED ON REORGANIZATION

Abstract

Ordinary courts frequently invoke constitutional principles when justifying their decisions, including in disputes concerning employee dismissal on the grounds of reorganization. This article employs descriptive, analytical, hermeneutical, and comparative legal methods to critically examine how courts assess the lawfulness of such dismissals within the constitutional framework of freedom of enterprise and the state’s obligation to promote entrepreneurship. It also critiques the prevailing standards of judicial reasoning in these decisions. The paper questions the necessity, appropriateness, and logical coherence of courts’ references to constitutional norms in this category of disputes. It examines the scope of discretionary powers vested in both employers and courts, particularly in the context of reorganization and restructuring processes. The article identifies which specific issues general courts are authorized to examine in dismissal cases based on reorganization and under what factual circumstances such examination is permissible This research will be useful for scholars and practitioners concerned with the lawfulness of employment termination based on reorganization, the application of constitutional principles by general jurisdiction courts, and the methodological standards governing judicial reasoning.