Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Termination of Employment Convention, 1982 (No. 158) - Serbia (Ratification: 2000)

The Committee notes the Government’s report received in September 2011, which includes comments by the Trade Union Confederation Nezavisnost and the Association of Independent Trade Unions of Serbia. Nezavisnost indicates that the Government’s report contains insufficient information on the national practice on termination of employment. It further indicates that during 2009, the employment of as many as 5,000 employees was terminated, as a result of the global financial and economic crisis. Nezavisnost and the Association of Independent Trade Unions of Serbia refer to irregularities such as: lack of warning prior to terminations; failure to respect the period of notice in the employment contract; non-compliance with provisions regulating termination of employment of workers’ representatives; and failure of pay due compensation upon termination of employment. Nezavisnost stresses that, due to the high costs of litigation, the majority of workers have limited access to justice and, consequently, many of them fail to receive financial compensation they may be entitled to following unlawful employment termination. It also alleges that, notwithstanding judicial reforms, labour disputes last three to four years before reaching a final judgement. In this regard, the Association of Independent Trade Unions of Serbia specifies that many decisions of the Constitutional Court indicate that the unreasonable length of unjustified employment termination procedures constitutes a breach of the right to trial within a reasonable time. The Committee invites the Government to supply extracts of important court decisions on the reasons for termination of employment, statistics on the activities of the bodies of appeal (such as the number of appeals against unjustified termination (Article 4 of the Convention), the outcome of such appeals, the nature of the remedy awarded and the average time taken for an appeal to be decided), as well as statistics on the number of terminations for economic or similar reasons (Part V of the report form).

Article 9(2) of the Convention. Burden of proof. In reply to the 2006 direct request, the Government listed the provisions of the Code of Civil Procedure on the presentation of evidence in court proceedings, which also apply to labour disputes. Section 223 of the Code establishes that if the court cannot establish a particular fact based on the evidence presented, it shall apply the burden of proof principle. According to this principle, a party wishing to assert a right shall prove the facts on which her/his claim is based, unless otherwise provided by law. A party who alleges the nullity of a right shall prove the facts on which she/he bases her/his allegation, unless otherwise provided by law. The Committee invites the Government to provide further information on the practical application of sections 222–226 of the Code of Civil Procedure in appeals against unjustified termination of employment demonstrating that the worker does not have to bear alone the burden of proving that termination was not valid.

Article 11. Period of notice. In its previous comments, the Committee noted that, although the programme enacted by the employer to manage redundancies pursuant to sections 153 and 155 of the Labour Law may determine the deadline within which the employer shall give notice of dismissal to the employee, the national provisions do not impose an obligation to give notice (or pay compensation in lieu thereof), nor stipulate the minimum period of such notice. It further noted that the Labour Law provides a one-to-three month notice period for terminations due to the employees’ “failure to perform or lack of knowledge or skills”, but does not require the employer to give notice to employees who breached their duty obligations or failed to adhere to work discipline in circumstances where the misconduct is not serious. In its comments, Nezavisnost stresses that it is essential to stipulate a reasonable period of notice or an appropriate compensation in lieu thereof to ensure conformity with Article 11 of the Convention. The Committee again recalls that, under Article 11 of the Convention, a worker is entitled to a reasonable period of notice (or compensation in lieu thereof), the only exception being the employee’s serious misconduct. The Committee again requests the Government to bring the Labour Law in line with the requirements of Article 11 and to provide for a reasonable period of notice (or compensation in lieu thereof) in respect of all terminations of employment at the initiative of the employer, except those terminations based on the serious misconduct of the employee.

Article 12. Severance allowance and other income protection. In reply to the 2006 direct request, the Government states that it will take the Committee’s remarks into consideration in the process of developing the draft Labour Law. In its previous comments, the Committee noted that an employee, whose employment contract is terminated due to technological, economic or organizational changes, is entitled to a severance allowance and other income protection (section 160 of the Labour Law). It further noted that, by virtue of section 109 of the Law on Employment and Insurance in Case of Unemployment, the employee is entitled to compensation in specified cases, including termination for failure to achieve the envisaged results or inability to work. The Committee recalls that Article 12 of the Convention applies to all terminations at the initiative of the employer, except for those due to the employee’s serious misconduct. The Committee requests the Government to provide information on measures taken towards ensuring conformity between its national legislation and Article 12 of the Convention by providing either for a severance allowance contemplated in Article 12(1)(a), or the benefits contemplated in Article 12(1)(b).

Article 13. Consultations with workers’ representatives. The Government indicates that the National Employment Service through an operational expert team cooperates with employers and other concerned stakeholders, such as representatives of territorial autonomy and local self-government, in reorganization, restructuring or privatization processes. This team is also in charge of proposing measures aimed at preventing or reducing the number of redundancies. The Committee invites the Government to provide further information on the consultations held by the National Employment Service with workers’ representatives on the measures taken to avert or minimize terminations of employment and to mitigate the adverse effects of any terminations on the workers concerned, such as finding alternative employment (Article 13(1)(b)).

[The Government is requested to reply in detail to the present comments in 2013.]