The answer to this question is rather simple – no, by publishing employment-related documents on notice board the employer is not violating personal data of employees that such documents refer to.
The reason for this lies in the fact that the Law on Labour contains a basis for undertaking such activity. What is more, this is controller’s legal obligation by virtue of Article 12, para. 1, item 3) of the Law on Personal Data Protection (“LPDP”).
Namely, the Law on Labour prescribes a special procedure for serving to the employees the decisions on exercising of rights, obligations and responsibilities, including termination notices and warnings on existence of grounds for contract termination (Art. 180, 185 and 193).
The main rule is to serve this documents to employees personally on employer’s premises or to the address of employee’s residence or stay.
If it is not possible to serve the documents in this manner, subsidiary rule shall apply under which the employer shall be obliged to make an official record thereof and the very document (decision/warning) shall be published on the employer’s notice board. The law here prescribes a legal fiction that upon expiry of eight days after publication on the notice board the document shall be deemed delivered (although it will not be physically delivered to the employee).
Such situations are rather frequent in practice since employees are often inaccessible for the employer or they avoid or refuse to accept such document.
Although the described actions of the employer are obviously lawful – since they are based on very clear provisions of the Law on Labour, one may question the sustainability of such legal solution within the framework imposed by LPDP principles.
One should consider the following circumstances:
- Firstly, such documents contain a large number of personal data, and some of them may also be particularly sensitive (for instance, data on employee’s health state). The Law on Labour does not stipulate which employees’ personal data shall be contained in decisions and warnings, therefore these are by default name and surname, address, jobs performed by the employee, date of entry into employment contract and often even personal number (JMBG).
In addition, the law prescribes for instance that decisions on rights, obligations and responsibilities under employment relation shall be elaborated, and that warnings on existence of grounds for contract termination due to violation of working obligation or disrespecting of working discipline shall contain, among other, facts and evidence that indicate the existence of conditions for dismissal.
- Secondly, along with undeniable need for such data to be established and noted in the decision and warning, one can reasonably question the validity of making them accessible to everyone who uses certain working environment and even visitors to facilities where notice board is located. Such transparency is neither necessary nor justified from the aspect of ensuring legality of procedure conducted by the employer, nor does it otherwise contribute to the possibility of using legal remedy against employer’s decision. Making personal data available in this manner seems disproportionate to the purpose this activity is intended to have.
The legislator’s idea, taken over from procedural laws for the purpose of ensuring any certainty whatsoever in delivery of employment-related documents, loses its battle with employee’s right to privacy, which is undeniably enjoyed even by those employees who violated working obligation or disrespected working discipline.
- Thirdly, such legal solution does not lead to greater legal certainty with regard to delivery of documents to employees because a document posted on employee’s premises is not available to the person it is intended for (on the contrary, it is available to an unlimited number of people that it does not refer to), just like when an employee arrives to employer’s premises within eight days after the posting of document on the notice board the employer may attempt to directly serve him/her the document.
One of possible solutions for overcoming this situation is the abolishment of obligation to post the decision/warning on notice board and keep the sole obligation of drafting an official record which would note the impossibility of personal delivery, whereas legally relevant deadlines would also be calculated from the day of its drafting.
Article 100 of the LPDP stipulates that provisions of other laws that pertain to personal data protection will be aligned with it by the end of 2020.
Given the still ongoing situation with the coronavirus, as well as circumstance that the National Assembly of the Republic of Serbia did not convene for several reasons most of the year, it is very likely that alignment of regulations with the LPDP will not be done in a legally prescribed timeframe. It remains to be seen when and to what extent the legislator will recognize the need for amendment of relevant provisions of the Law on Labour in the context of personal data protection.
This article is to be considered as exclusively informative, with no intention to provide legal advice.
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By Ivana Ruzicic, Managing Partner, PR Legal