AMICABLE WAY OF ENDING THE ARBITRATION PROCEDURE
Two disputes in connection with the harassment at workplace in the Clinical Centre of Serbia were settled by arbitration decisions (final and binding), based on the AGREEMENT of all participants in the procedure – proposers of the protection against harassment, persons charged with harassment, and the employer. In this procedure, the arbitration decision represents freely expressed will of all parties and has permanently and finally harmonized relationships, is acceptable in its application and represents a good practice example.
Such resolution of disputes should be attempted any time when this is within the disposition of the parties (when it is not restricted by coercive measures), because it harmonizes the relationships and represents a WIN-WIN solution in which each party feels that it has gained something and this improves work climate, stimulates performance, and builds teamwork. No one obstructs the implementation because this creates a constitutive relationship which has been established by the agreement of all participants.
Disputes in connection with the harassment at workplace are complex: emotional, social, interest-related and legal. To be successfully and permanently resolved, they require multidisciplinary approach, emotional, social and verbal intelligence. In addition to the required expertise in the labour law, it is necessary to be able to recognize characteristic mobbing indicators or indicators of the abuse of right to protection against mobbing. This is important because the Law on Prevention of Harassment at Workplace equally sanctions the violation of rights (mobbing) and the abuse of right to protection against mobbing, which deviates from the main principle in contract that any abuse shall be sanctioned through the indemnity paid to the claimant.
Additional dilemma also lies in the fact that special laws, which regulate institution of legal proceeding – the Law on Prevention of Harassment at Workplace and the Law on Amicable Resolution of Labour Disputes, offer different solutions and, superficially perceived – the matter stipulated by one law are excluded by another.
In particular, the procedure with the employer under the Law on Prevention of Harassment at Workplace is conducted according to the general mediation principles and is successfully ended by reaching an agreement, with the consent of the employer for, otherwise (if not in the spirit of business policy) it can be declarative instead of constitutive – virtually unenforceable and inapplicable. The principle of voluntary participation is affirmed in all phases, unlike the Law on Amicable Resolution of Labour Disputes which limits this principle until the first hearing.
Arbitration decision is passed by the arbiter based on the evidence hearing and presentation of evidence, whereas the procedure of mediation involves negotiations. If interpreted restrictively, it could be concluded that arbitration excludes passing of decisions by negotiations. However, if we analyse the common objective of both Laws as well as the broadest objective of the entire labour legislature, which is the harmonization of legal and labour relations, it is clear that all regulations should be interpreted in a legally coherent manner, systematically and by targeting, so that in addition to attaining the objectives which represent the will of a legislator, they can also meet the interests of parties to dispute.
In accordance with the main legal principle that “what is not forbidden, is allowed” (Civil Code), the most appropriate and balanced solution is the one which contains the will of the parties – resolution by negotiation rather than by presentation of evidence. Resolution of disputes in connection with the harassment in the Clinical Centre of Serbia are two good practice examples and represent a quite new approach to WIN – WIN closure of a dispute.
If the disputable situation cannot be resolved amicably, the arbiter shall proceed in accordance with the provisions of the arbitration procedure which, in its conduct, is a simplified court proceedings i.e. civil procedure.