Good practice examples (individual)

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CASE STUDY no. 3

07. 03. 2017.

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.