Good practice examples

COLLECTIVE LABOUR DISPUTES

CASE STUDY no. 1

Who was involved

This case study analyses the role of the Republic Agency for Peaceful Settlement of Labour Disputes of the Republic of Serbia in the process of conciliation in a collective labour dispute between the employer, the Health Centre, the Basic organization of the Trade Union ‘Nezavisnost’, the petitioner, the Municipality as the founder of the Health Centre and the Trade Union of employees in Health and Social Care of the Health Centre.

The Subject of the Dispute

The subject of the dispute is challenging the right to collective negotiation to the Basic organization of the Trade Union ’Nezavisnost’ in the process of concluding a new collective agreement of the employer – Health Centre. As the reason for challenging the right to collective negotiation to the Trade Union, the employer stresses the lack of representation of the Trade Union ‘Nezavisnost’.

All the memos from the president of “Nezavisnost” Trade Union, addressed to the employer, the director of the Health Centre and the founder – the President of the Municipality, to allow the Union to participate in negotiations on the conclusion of the collective agreement, remained unresolved and ignored. The employer and founder kept asking for new evidence on representation of the ‘Nezavisnost’ Trade Union and did not allow them to participate in negotiating and concluding the collective agreement. The subject of the dispute is to determine the representation of the Trade Union and the right to participate in the conclusion of the collective agreement.

How the Arbiter was included

The president of the Trade Union ‘Nezavisnost’ was the main initiator for starting negotiations for signing of the collective agreement, but the employer – the Health Centre challenged the representative of the Union and therefore prevented the Union representatives from taking part in meetings and negotiations on the conclusion of a new collective agreement. The president of the Trade Union ‘Nezavisnost’ requested assistance from the Republic Agency for a peaceful settlement of the collective labour dispute and sent a proposal with which the parties to the dispute agreed. The Agency immediately acted upon the submitted proposal and appointed a conciliator.

The Potential Impact of the Dispute

The president of the Trade Union ‘Nezavisnost’ remained on the proposal that the Union should have representation and the right to participate in the negotiation and conclusion of the Collective Agreement. The employer and the founder continued to challenge the Union’s right to representation, and the Health Centre’s Trade Union of Employees in Health and Social Protection supported such an attitude as well.

Short Review of the Conciliation Proceeding

The President of the Union sent a proposal to The Republic Agency for Peaceful Settlement of Labour Disputes to appoint a conciliator who will assist the parties to the collective dispute, with the aim of concluding a Dispute Resolution Agreement.

The director of the Agency made a decision on appointing a conciliator, with which all the parties to the dispute agreed.

The procedure, in which all the parties to the dispute participated, was held in the premises of the employer. The procedure was public, in the presence of a certain number of employees, with due respect for the order. After forming the Conciliation Committee, the conciliation procedure started with presenting of the necessary evidence, by inspecting the complete documentation required by the conciliator for resolving the collective labour dispute. There were no separate conversations with the Committee members.

The conciliator determined the number of employees in the Health Centre by inspecting the personnel records. There are 324 employees, 306 of them employed on full-time basis, and 18 for a definite period. None of the board members challenged the authenticity of the data and documents and the employer’s confirmation of the number of employees. The president of the Trade Union of Employees in Health and Social Protection was legitimized in this procedure by a document, a Decision on determining representation.

During the hearing and the discussion, the president of the Trade Union ‘Nezavisnost’ pointed out that despite the submitted material evidence: the Resolution on the representative from the Ministry of Labour and Social Policy and the Membership Application for membership in the Trade Union, they challenged the representative of the Union with the explanation that these documents were not sufficient.

The employer disputed the statement of the president of the Trade Union ‘Nezavisnost’, pointing out that until the hearing in the presence of a conciliator, he never presented the employer with these two documents on the basis of which the representation of the Trade Union ‘Nezavisnost’ was established. At the very discussion, the president of the Trade Union ‘Nezavisnost’ handed over the documents to the conciliator. The conciliator then inspected the original documents, and enclosed photocopies of documents to the files.

Given all the evidence presented, the Employer and the Founder did not have any objections. With the help of the conciliator, they established the text of the Recommendation, which gives the Trade Union ‘Nezavisnost’ the right to representation and the right to collective negotiation in the process of concluding the Collective Agreement.

After signing the Recommendation, a Dispute Resolution Agreement was drafted and signed by all members of the Committee with no objection.

The Outcome of the Conciliation

With the participation of the Republic Agency for Peaceful Settlement of the Collective Labour Dispute, the Agreement on peaceful settlement of the dispute was concluded quickly, without costs, efficiently, impartially, in two discussions (in a period of 15 days) before the Conciliation Committee of 4 representatives. The result of the procedure was the conclusion of the Collective Agreement to the employees’ satisfaction, the consent of the Founder, the Employer, the Trade Union “Nezavisnost” and the Trade Union of Employees in Health and Social Protection.

CASE STUDY no. 2

The Participants in the Dispute

In this collective dispute, the participants to the dispute are the Ministry of Justice as an employer on the one side and the Trade Union Organization of Judicial Bodies of Serbia – SOPOS as a representative trade union on the other, on whose proposal a collective dispute has been initiated.

The Subject of the Dispute

The Government of the Republic of Serbia and the representative trade unions for the territory of the Republic of Serbia – the Trade Union of the Serbian Administration, the Trade Union of Administration of Justice of Serbia and the Trade Union Organization of Judicial Bodies of Serbia – SOPOS concluded the Special Collective Agreement for State Authorities published in the ‘Official Gazette of the RS’ no. 25/2015 from 13 March 2015.

During the course of two years, since the day said Agreement was concluded until today, the employer – the Ministry of Justice did not adhere to and implement the numerous provisions of the Special Collective Agreement, due to the lack of funds in the budget of the Republic of Serbia. Since the Law on the Budget of the Republic of Serbia did not provide funds for the realization of many rights of employees in the judicial administration, the provisions of this Special Collective Agreement were derogated by the provisions of the Law on the Budget of the Republic of Serbia.

Solving the issues arising from the application or non-application of the Special Collective Agreement for State Authorities relates to:

– the insurance of employees i.e. the obligation of the employer, not currently observed by the employer, to negotiate and obtain the consent of the representative trade union prior to the public procurement for the conclusion of the insurance contract;

– including representative trade unions in negotiations in the process of making draft budget regarding the basis for calculation and payment of salaries, all in order to improve the material position of employees and to regulate salaries and other incomes on unique principles;

– default of the obligation of the Committee for Monitoring the Application of the Collective Agreement to consider at least once every three months the current issues related to the material and social situation of the employees, the mutual relations between the representative unions and the employer, the need to amend the Agreement, the practice and the opinion regarding the implementation of the Agreement and to make a record on the considered issues and submit it to the signatories of the contract;

– not providing New Year’s presents for children, i.e. gift certificates in cash in value up to non-taxable amount and not paying the single annual reward on Statehood Day of the Republic of Serbia;

– not submitting notices or opinions on the implementation of the laws and bylaws that make impact on the material, economic and social status of employees;

– opinions and interpretations of the provisions of the Special Collective Agreement relating to the ‘attachment bonus’ and ‘field bonus’ of the court executors;

– the employer’s obligation to request the opinion of the representative trade unions in the procedure of passing the law or bylaws that are not considered at the Social Economic Council and which regulate the rights of the employees, and provide the notices or the opinions on the application of laws and bylaws.

How the Arbiter was Included

There had been attempts of direct negotiations with the Government and the Ministry of Justice which failed. As one of the signatories, the Trade Union Organization of Judicial Bodies of Serbia – SOPOS submitted a proposal to the Republic Agency for Peaceful Settlement of Labour Disputes, in order to resolve this collective dispute. The Ministry of Justice gave its consent to resolve this dispute peacefully, the acting conciliator was appointed, after which the case was taken over for further processing.

Short Review of the Proceeding

The procedure of peaceful settlement of this collective dispute was conducted and concluded according to the rules regulated by the law in question. At the first discussion, a Conciliation Committee was formed, from one representative of each party to the dispute and a conciliator as a chairman. Both discussions were held in a fair atmosphere, with a proactive approach by both parties to the dispute and with a strong desire to resolve most of the disputable issues, with the constant emphasis that the cooperation and communication of the participants to the dispute in the work was excellent. The role of the conciliator during both discussions was directed at further encouraging the parties to the dispute to contribute with their behaviours and activities to a mutually acceptable way of resolving this collective dispute. There was no need for holding separate meetings in order to collect information and data from representatives of the parties to the dispute.

The discussions were constructive and the conciliator took into account all the suggestions, proposals and opinions of the parties to the dispute. He also prepared a proposal of the text of the recommendation, previously agreed among the parties to the dispute, regarding all the doubts and disputable points.

The Outcome of the Procedure

At the second discussion, the Conciliation Committee made a Recommendation on the manner of resolving the collective labour dispute. It was especially taken into account that by applying it, it is ensured and contributed the consistent application of the legal provisions and provisions of the Special Collective Agreement for state authorities. It appreciates, on the one hand, the need for preserving the material and the social position of the employees in the judicial bodies, as well as the legal financial limitations and opportunities of the employer to fully understand and meet the demands of the representative trade union, on the other. It was recommended that the parties to the dispute, after accepting the recommendation, conclude the Agreement on the settlement of the dispute.

CASE STUDY no. 3

The Participants in the Dispute

This case study analyses the role of the Republic Agency for Peaceful Settlement of Labour Disputes in the process of negotiating – harmonizing the text of the collective agreement with the employer in order to conclude it, between the Employer and several unions of Public Enterprise X, who, along with the active participation of the Republic Agency for Peaceful Settlement of Labour Disputes, continued after the adoption of the current Labour Law.

Employer-the Public Enterprise X (hereinafter the Employer), several unions of the PEs, harmonization of the text of the proposal of the collective agreement with the employer in order to conclude the same, complex negotiations of the parties to the dispute in the process of harmonization, time pressure, reputation and contribution of the Republic Agency for Peaceful Settlement of Labour disputes in the procedure and positive experience of the parties in negotiations.

The Subject of the Dispute

The employer and the Trade Unions of PE X disputed over the content of a large number of the articles in the text of the Collective Agreement. The Employer presented the Agreement as the initial proposal of the text of the Collective Agreement, in particular about the amendments to the Labour Law regarding the application and calculation of years of service with the Employer.

In order to conclude the collective agreement with the relevant Ministry of Trade, Tourism and Telecommunications, it was necessary for the employer and trade unions to agree on the text of the proposal of the Collective Agreement and to continue with the further procedure of concluding the collective agreement with the relevant Ministry with the agreed proposal.

How the Arbiter was Included

After a long period of negotiation between the Employer and the Trade Union of the PE X, the proposal was sent to the Republic Agency for Peaceful Settlement of Labour Disputes to appoint a conciliator. The conciliator would assist the parties in the negotiation process in order to resolve the disputed articles of the text of the Collective Agreement of the Employer and to harmonize them with the current, amended Regulations.

Therefore, the Republic Agency for Peaceful Settlement of Labour Disputes and the acting conciliator, although formally invited to take part in the conciliation procedure between the Employer and the Trade Union of the PE, actually participated in the mentioned negotiations as an expert adviser who would contribute to the harmonization of a number of disputed articles of the proposed text of the Collective Agreement.

Short Review of the Procedure

After the submission of the proposal, the first of the two meetings was scheduled in a very short time and held in the premises of the Employer.

Those meetings were very informative and lasted for more than 6 hours without a break. The parties to the dispute, despite different attitudes regarding the text of the Collective Agreement, showed extremely good communication both with each other and with the conciliator, as well as the desire to end the long-term negotiations as soon as possible.

Separate meetings with parties to the procedure on the most disputed points of the Collective Agreement were also held. One of the especially disputed issues between the Employer and one of the trade unions was an article of the Collective Agreement concerning calculation of years of service.

Namely, during the formation of the PE, a number of the employees was taken over from the company ‘A’. The Trade Union advocated the viewpoint that this number of the employees who were taken over from the company ‘A’ should have years of service calculated in a percentage higher than the proportion of employees employed by the Employer not taken over from ‘A’.

After holding separate meetings with the parties in the negotiation process, the Trade Union nevertheless gave up on such a viewpoint, and that article of the Collective Agreement was finally harmonized.

The Outcome of the Procedure

The outcome of the negotiation procedure with the Employer brought about the conclusion of long negotiations among the parties before the Republic Agency for Peaceful Settlement of Labour Disputes was included in the negotiation process. The main outcome was the harmonized text of the Proposal of the Collective Agreement between the employer and all trade unions who participated in the said negotiations and introducing a harmonized text before the relevant Ministry in order to conclude it.

Since the negotiating parties had been trying to harmonize the text of the proposal of a Collective Agreement for almost two years before including the Republic Agency for Peaceful Settlement of Labour Disputes in the negotiation process, there had been a real possibility of negative consequences for the Employer, including the possibility of a strike.

INDIVIDUAL LABOUR DISPUTES

CASE STUDY no. 1

The Participants in the Dispute

An individual labour dispute was initiated in order to determine the entitlement to the reimbursement of commuting expenses at the proposal of the claimant – the employee, with which the employer – the Institute agreed.

The parties to this individual labour dispute are:

– The employee;

– The employer – the Insitute.

This study analyses the role of the Republic Agency for Peaceful Settlement of Labour Disputes in the process of resolving the individual labour dispute, which arose between the employee and the employer, regarding the reimbursement of commuting expenses.

The Subject of the Dispute

The subject of this individual labour dispute is determining the entitlement to the reimbursement of commuting expenses.

How was the Arbiter included

With the decision of the Director of the Republic Agency for Peaceful Settlement of Labour Disputes dated 18 December 2015, Danka Jaćimovic was appointed for the arbiter in this case.

Short Review of the Procedure

The arbiter held three public debates in the premises of the employer, attended by the employee and the attorneys of the employer.

The employee submitted the Proposal for the initiation of an individual labour dispute to the Republic Agency for Peaceful Settlement of Labour Disputes, in order to determine the entitlement to the reimbursement of commuting expenses for the period from April 2013 to November 2015. At the public hearings, the parties agreed that the actual period is from May 2013 to November 2015, during which the employee was not given commuting expenses.

The attorneys of the employer explained that there was no basis for paying the reimbursement of commuting expenses to the employee for the period from May 2013 to November 2015, since the General Act of the employer does not regulate the reimbursement of commuting expenses for the territory outside the municipalities of the City where the employee resides, because the employer only provides transport within the territory of the municipalities of the City.

The Arbiter determined that there were the Regulations on the Compensation of Staff Costs of the Institute as of 21 April 2005, which established the entitlement to the reimbursement of commuting expenses for employees from the place of residence to the place of employment. The Regulations were amended by the Decision of the Board of Directors from 4 April 2013 and the Decision of the Board of Directors from 26 August 2013 so that the employee was not granted the entitlement to the reimbursement of commuting expenses (from home to work), but partly, on the territory of the municipalities of the City where the employer organized his own transport, while outside the territory of the municipalities of the City, the employee was not entitled to reimbursement. The new Regulations on the reimbursement of staff expenses at the Institute determines the entitlement to reimbursement of commuting expenses of the employees, so that the employees, from the date of entry into force of this Regulation (from December 2015), will be entitled to reimbursement of commuting expenses, namely from the place of employment to the place of residence.

The arbiter established that:

– The employer did not pay to employee the reimbursement of commuting expenses for the period from May 2013 to November 2015, upon which the employee and attorneys of the employer agreed;

– The employee was present at work based on the record of working hours for the period from May 2013 to November 2015;

– The employee had commuting expenses as evidenced by monthly and single tickets delivered in the amount of the price on the submitted tickets (single and monthly) for the period from May 2013 to November 2015. The price of monthly and single tickets did not change for the specified period.

Pursuant to Article 118, paragraph 1, item 1 and Article 9, paragraph 1 of the Labor Law (‘Official Gazette of the Republic of Serbia’ No. 25 / 05,61 / 05, 54/09, 32/13 and 75/14), the employee is entitled to the reimbursement of commuting expenses, and the General Legal Act of the employer determines unfavourable work conditions. In accordance with the above stated, the decision was made that the employee is entitled to the reimbursement of commuting expenses.

The Outcome of the Procedure

The arbiter made a decision in the procedure of an individual labour dispute between the employee and the employer. The decision established the employee’s entitlement to the reimbursement of commuting expenses, by evaluating the provisions of the Labour Law and especially referring to the employee’s right, based on Article 118 and having in mind Article 9 of the Labour Law. Pursuant to the Labour Law the employee is entitled to the reimbursement of commuting expenses, therefore, the General Legal Act cannot provide working conditions, which are less favourable for the employee than the conditions determined by the Law. If this is the case, the provisions of the Law shall apply.

CASE STUDY no. 2

The Participants in the Dispute

The participants in the dispute were a group of 10 employees of the Health Centre, as the claimants and the Health Centre – as the respondent.

The Subject of the Dispute

The subject of the dispute was determining of the entitlement to jubilee awards and the payment thereof.

How the Arbiter was included

At the proposal of the employees, with the written consent of the employer, an individual labour dispute was initiated between the parties to the dispute: a group of 10 claimants, all employees of the Health Centre and the employer – the Health Centre, in order to determine and pay the jubilee awards.

Since the parties to the dispute had not agreed on the arbiter, the one was appointed by a decision of the director of the Republic Agency for Peaceful Settlement of Labour Disputes pursuant to the provisions of Article 12 paragraph 2 of the Law on the Peaceful Settlement of Labour Disputes (‘Official Gazette of RS’, No. 125/04 and 104/09).

Upon being appointed as the acting arbiter and taking over the case, the arbiter had, without delay, determined the place, date and time of the public hearing, after having spoken with the parties over the telephone. The public hearing was held in the employer’s premises, in the presence of the parties to the dispute, and ended the same day as it commenced.

Short Review of the Procedure

The public hearing was held in the employer’s premises in the presence of three and absence of seven duly invited claimants on the one side, and the legal representative of the employer on the other. It ended on the same day as it commenced. Based on the inspection of the relevant documents from the personal files of the claimants, and specifically their employment records, the list of employees of the Health Centre of dental health care for the jubilee awards for the length of service, the previous written statements of the employer given at arbiter’s claim, and on the basis of concurrent statements of the parties to the dispute, the arbiter established the following:

– that six out of the ten claimants have the required length of service spent in labour relations and thus fulfilled the condition for exercising the right to the jubilee awards, and that the employer, on the basis of the jubilee award right, paid only a part of the corresponding amount to some of them, while he did not pay any amount to the others;

– that the two claimants obtained the right to jubilee awards during the disputed period for 30 and 20 years of work spent in labour relation respectively and that they were paid full amounts of jubilee awards by applying the provisions of Article 60 of the Work Regulations, valid at the time when the claimants were entitled to jubilee awards;

– that the two claimants, even though they signed a Petition to initiate the procedure of the peaceful settlement of labour dispute, not only did not acquire the right to jubilee awards, and did not request establishing the rights to jubilee awards and payment of the appropriate amounts, but they also signed the proposal with the aim to support other claimants who have the rights to jubilee awards and who have not been paid the amount that belongs to them under that right;

– that the jubilee awards for the disputed period were not paid in full amounts or partially to the employees of dental service, and that they were paid to other employees in other organizational units of the employer. According to the statement of the director of the employer, this is because National Health Insurance Fund specifically provided and allocated funds for the payment of jubilee awards to all the employees, except for employees in the dental service.

The Applicable Law and Outcome of the Procedure

Based on the conducted evidence procedure and the established factual situation, by applying the relevant law in the following provisions:

a) of Article 60 of the Employer’s Work Regulations, which established that the employer can provide a jubilee award to an employee for the years of service in the Health Centre (paragraph 1), that in terms of paragraph 1 of this Article, jubilee awards are considered 10, 20 and 30 years of work (paragraph 2) and that the amount of the jubilee award is determined by the Director of the Health Centre in accordance with the available funds (paragraph 3);

b) of Article 107, paragraph 5 of the Special Collective Agreement for health facilities founded by the Republic of Serbia (‘Official Gazette of the RS’, No. 36/10 and 42/10), which also applies to the employer in this dispute in accordance with the provisions of Article 1 of the Decision on the Application of Special Collective Agreement for health facilities founded by the Republic of Serbia and applies to all the employers who perform healthcare activity or certain healthcare activities (‘Official Gazette of RS’ No. 42/10). It has been established that the employer is obliged to pay an employee a jubilee award in the amount of 1) 50% of the average salary in the commercial sector in the Republic of Serbia – for 10 years of work spent in employment relation; 2) one average salary in the commercial sector in the Republic of Serbia – for 20 years of work spent in employment relation; 3) one and a half average salary in the commercial sector in the Republic of Serbia – for 30 years of work spent in employment relation; 4) two average salaries in the commercial sector in the Republic of Serbia – for 35 years of work spent in employment relation;

c) of Article 28 of the 2009 Law on the Budget of the Republic of Serbia (‘Official Gazette of the Republic of Serbia’, No. 120/08 and 31/09), which, among other things, determined that in the budget year 2009, jubilee awards provided by special and individual collective agreements will not be calculated and paid for direct and indirect beneficiaries of the budget funds of the Republic of Serbia, the local government budget and organizations of compulsory social insurance and their users;

d) of Article 15 of the Law on the Budget of the Republic of Serbia for 2010 (‘Official Gazette of the Republic of Serbia’, No. 107/09 and 91/10) which, among other things, determined that in the budget year 2010, jubilee awards provided by special and individual collective agreements will not be calculated and paid for direct and indirect beneficiaries of the budget funds of the Republic of Serbia, the local government budget and organizations for compulsory social insurance;

e) of Article 13, paragraph 2 of the Law on the Budget of the Republic of Serbia for 2011 (‘Official Gazette of the Republic of Serbia’ No. 101/10 and 78/11) which, among other things, determined that in the year 2011, the jubilee awards will be calculated and paid to the beneficiaries referred to in paragraph 1 of this Article who have fulfilled the conditions for exercising this right in 2009 and 2010 based on the records of employees in specified years;

f) of Article 13 paragraph 1 of the Law on the Budget of the Republic of Serbia for 2012 (‘Official Gazette of the Republic of Serbia’ No. 111/11) which, among other things, determined that in the budget year 2012, jubilee awards will be calculated and paid to the employees who acquired this right in 2012,

the arbiter determined that:

-in accordance with the provisions of Article 107, paragraph 5 of the Special Collective Agreement for Health Institutions founded by the Republic of Serbia, Article 13 paragraph 2 of the Law on the Budget of the Republic of Serbia for 2011 and Article 13 paragraph 1 of the Law on the Budget of the Republic Serbia for 2012, the requirements of six claimants were founded and they are entitled to jubilee awards for 10, 20 and 35 years of work spent in employment and the payment of full amounts on that basis (to some of them), i.e. payment of the difference between the paid and the corresponding full amounts of jubilee awards (to the others);

-the requests of two claimants who, by applying the provisions of Article 60 of the Employer’s Work Regulations, established the rights to the jubilee awards and were paid the corresponding compensation in full amounts by the employer, are unfounded; and

-the remaining two claimants did not file the claims for violation of the rights, but with the aim of giving some kind of support to other employees who were not paid their jubilee awards, therefore, the labour rights of these claimants were not violated, so that there is not an individual dispute within the meaning of Article 3 paragraph 2 of the Law on Peaceful Settlement of Labour Disputes, and made a decision by which:

1. the right to jubilee awards has been established for six claimants for 10, 20 and 35 years of work spent in employment relation. The employer has the obligation to pay the corresponding full amounts of the jubilee awards to two claimants, and to the remaining four of them to pay the difference between the paid and the corresponding full amount of the jubilee awards, within 8 days from the date of receiving the written notice of the Decision;

2. the requests of two claimants to be paid the amounts higher than the amount acquired by right to the jubilee awards obtained during the disputed period for 30 or 20 years of work spent in employment relationship, were dismissed as unfounded; and

3. the proposal of two claimants for the payment of the jubilee awards was rejected.

CASE STUDY no. 3

The Participants in the Dispute

The participants in the dispute were the employee, as a claimant, on the one side, and the employer – as a respondent, on the other.

The Subject of the Dispute

The subject of the dispute was the annulment of the Decision on termination of the employment (termination of the employment contract).

How Was the Arbiter Included

On the employee’s proposal, with the written consent of the employer, an individual labour dispute was initiated between the parties of the dispute.

Since the parties to the dispute had not agreed on the arbiter, the one was appointed by a decision of the director of the Republic Agency for Peaceful Settlement of Labour Disputes pursuant to the provision of Article 12 paragraph 2 of the Law on the Peaceful Settlement of Labour Disputes (‘Official Gazette of RS’, No. 125/04 and 104/09).

Upon being appointed as the acting arbiter and taking over the case, the arbiter had, without delay, determined the place, date and time of the public hearing, after having spoken with the parties over the telephone. The public hearing was held in the employer’s premises, in the presence of the parties to the dispute, and ended on the same day as it commenced.

Short Review of the Procedure

In order to determine the factual status of the importance for the solution of this legal matter, the arbiter conducted an evidentiary proceeding at a public hearing. According to the established factual situation, the claimant was employed by the employer for a definite period of time at the workplace of the seller in the employer’s market where, on a concrete day at a certain time from the box where the cosmetics were located, she unauthorizedly took the deodorant ‘Dove’, which she then put away in a refrigerator for fruits and hid it under the shelf, in order to use it later. Based on the above factual situation, which was acknowledged by the claimant, the employer warned the claimant that they had acquired justifiable reasons for terminating the Labour Contract. The claimant duly received the warning. By making an explanation of the warning, the claimant stated that she did not deny taking deodorant, justifying the act by the need to annul unpleasant odours caused by excessive sweating and uncontrolled urinating due to health problems. With the employer’s decision, it was established that the employee had her employment as the seller at a supermarket terminated. The employer terminated the employment in accordance with the Labour Contract, due to the violation of the work obligation stipulated in Item 16, subsection 11 of the aforementioned Employment Contract, which consists of unauthorized disposal and use of employer’s possessions. The employee’s decision was duly received. In the procedure of termination of the Labour Contract, the opinion of the Trade Union was not requested, since the claimant is not a member of the Union.

Legal Assessment and Outcome of the Procedure

Based on the presented evidence, the careful evaluation of each piece of evidence separately and all the evidence together, as well as the results of the entire procedure, the arbiter established that the proposal of the employee is unfounded. Regarding the legality of the opposed decision from the aspect of the application of substantive law, the arbiter considered that the opposed decision was made in accordance with the provision of Article 179, item 2) of the Labour Law. This established that the employer can cancel an employment contract if there is a justifiable reason relating to the employee’s work ability, his behaviour and the employer’s needs, if the employee violates his/her work obligation by a general Act or Labour Contract and provision of item 16, sub-item 11 of the Labour Contract, which establishes the termination of the Labour Contract with its cancellation by the employer if the employee causes a violation of the work obligation and the unauthorized disposal and use of employer’s possessions. Namely, from the written statements of the employee and the deputy manager in the employer’s market, as well as the statement of the claimant submitted at the public hearing held in this procedure, it was undisputed that the claimant took ‘Dove’ deodorant without permission on the concrete day from the box of the supermarket where the cosmetics were located. Then she took it in the refrigerator for fruits and hid it under the shelf, in order to use it later. In the established factual situation, and based on the fact that the disputed decision contains a factual description of the act of violation of the work obligation that enables its identification or qualification, the factual description of the violation of a work obligation may be submitted under the provision of item 16, sub-item 11 of the Labour Contract. That is, the violation of a work obligation can be qualified as an unauthorized disposal and use of the employer’s possessions and the disputed solution is, according to the arbiter’s assessment, based on the law.

The arbiter separately estimated the applicant’s claim that she had already been punished for the same violation of the work obligation by a reduction in earnings for the certain month, and on that claim, he obtained a monthly evaluation of the employee’s performance for that month. On the basis of this it was established that the reduction in earnings was based on the assessment of the employee’s performance, within the meaning of Article 6 of the Labour Contract, according to which the salary can be reduced or increased by 30% based on the individual assessment of the employee, and not on the basis of a breach of work obligations. Consequently, the principle that “someone cannot be prosecuted twice for the same matter” was not violated (ne bis in idem). The arbiter also evaluated other allegations of the parties in the proceeding, but did not explain them in particular, judging that they did not have the significance of the decisive circumstances and that, therefore, they did not have influence on a different solution to this legal matter.

Based on the conducted evidentiary procedure and the established factual situation, by applying the relevant law, the arbiter considered that the dismissal procedure of the Labour Contract was conducted in accordance with the provisions of Art. 179. to 182, Art. 184 and 185 of the Labour Law (‘Official Gazette of the Republic of Serbia’ Nos. 24/05, 61/05, 54/09 and 32/13). The arbiter then dismissed as unfounded the proposal of the employee to annul the employer’s decision on termination of the employment by terminating the Labour Contract by the employer due to a violation of the work obligation.