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Employee’s Right to Defence – Is an Employer Obliged to Enclose Evidence to the Warning on Existence of Reasons for Termination of Employment Agreement?

Employee’s Right to Defence

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The Labour Law (“Official Gazette of RS”, no. 24/2005, 61/2005, 54/2009, 32/2013, 75/2014, 13/2017 – decision of the CC, 113/2017 and 95/2018 – authentic interpretation) (the “Law”) prescribes that employer shall be obliged, prior to the termination of employment agreement due to violation of working obligation or working discipline, to notify the employee in writing on the existence of reasons for such termination, as well as to provide the employee with a period of minimum eight days from the warning submission to declare on the subject allegations. Employer is obliged to state grounds for termination in the warning, as well as facts and evidence indicating the fulfilment of requirements for termination, and deadline for submitting the employee’s response thereof.

One can see from the above that the Law quite vaguely regulates the procedure concerned, and it can only be concluded from the said provisions that employer is obliged to state the evidence (which indicate the fulfilment of reasons for termination), but one cannot assume whether the employer is liable to provide evidence to the employee along with the warning.

Position of Court Practice

Until recently, court practice hereof deemed that employer is not obliged to provide evidence to the employee along with the warning on existence of reasons for termination of employment. An example thereof is the judgment of the Appellate Court in Belgrade no. Gž1 737/2016 as of June 10, 2016, according to which employer is only obliged to state the evidence (which is in accordance with the Law)

However, in the judgment of the Supreme Court of Cassation no. Rev2 1039/2021 as of May 18, 2021, the said court took the position that, if the warning on existence of reasons for termination of employment agreement enlists the evidence based on which the employer concluded that conditions for termination are met, but the employer failed to provide them to the employee, although the decision for termination is based upon them, the employee’s right to defence against statements burdened upon him in the procedure of delivering the termination decision is denied, whereby the said right is provided for under the Convention no. 158 of the International Labour Organisation (“ILO”).

ILO Convention no. 158

Under the ILO Convention no. 158 (the “Convention”), which was ratified by the Republic of Serbia, the employment shall not be terminated for reasons related to the employee’s conduct or performance before it is provided an opportunity to defend itself against the allegations made (unless the employer cannot reasonably be expected to provide such opportunity).

Therefore, not even the Convention explicitly regulates the issue that this text is about. One can consequently wonder – does the proclaimed right of an employee to defend itself necessarily implies the provision of evidence on the existence of reasons for employment agreement termination along with the warning issued therefore?

Is the Procedure for Termination of Employment a Penalty Procedure?

Considering the most recent position of court practice on this matter, one gets the impression that the procedure of employment agreement termination by employer, due to the violation of working obligation or working discipline, is equalised with penalty procedure in terms of regulations governing criminal, misdemeanour, and similar procedures, and even the Constitution of the Republic of Serbia, pursuant to which the right to defence implies a wide range of procedural rights of defendant.

Nevertheless, considering that under the Law an employee may, but is not obliged to, respond to the warning, and is also entitled to file a lawsuit before the competent court in prescribed deadline for disputing the legality of the termination decision, the justification of the above stated equalisation becomes questionable. In other words, the justifiability of such an extensive interpretation of the above provision is arguable, particularly because the idea and purpose of taking the positions by the Supreme Court of Cassation is to align court practice which, until recently, firmly stated that violation of employee’s right to defence in a particular situation exists only if the employment agreement was terminated by employer without submission of the warning with legally prescribed content.

This article is to be considered as exclusively informative, with no intention to provide legal advice. If you should need additional information, please contact us directly.

By Lara Maksimovic, Senior Associate, and Andrea Arsic, Associate PR Legal

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