Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

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

Legislative developments. The Committee notes with interest the information provided in the Government’s 2015 and 2016 reports regarding the Law Amending the Labour Law, which entered into force on 29 July 2014, including the specific provisions relevant to the application of the Convention on matters that relate to the duration of fixed-term employment contracts, valid and invalid reasons for termination, as well as procedures prior to termination and court procedures concerning termination of employment. The Government indicates that, pursuant to the amendments of the Labour Law, an employment contract may be concluded for a fixed period of time that is predetermined and for objective reasons; namely a deadline, the performance of a specific task, or the occurrence of a specific event. The employer may conclude one or more contracts of employment for a fixed period of time with the same worker for a maximum period of 24 months, with or without breaks. The Committee requests the Government to provide information on the use of safeguards provided in the Labour Law, as amended, against abusive recourse to contracts of employment for a specified period of time, including relevant court decisions in this regard.

Article 9(2) of the Convention. Burden of proof. The Committee notes that no information has been provided in reply to its previous comments under Article 9 of the Convention. The Committee reiterates its request that the Government provide updated information on the measures taken to give full effect to Article 9 of the Convention. Referring to its previous comments, it also requests 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, especially in relation to the burden of proof, and to indicate whether the worker bears the full burden of proving that the termination was not valid.

Article 11. Period of notice. The Government indicates that, according to section 189(1) of the Labour Law, as amended, an employee whose employment contract has been terminated due to unsatisfactory work performance, or lack of necessary knowledge and skills, is entitled to a notice period to be determined by the collective agreement, work regulations or the employment contract depending on length of insurance coverage, but which may not be shorter than eight or longer than 30 days. According to section 180(a) of the Labour Law, as amended, an employer may terminate the worker’s contract, or impose other measures, if: it has previously given the worker written notice of the deficiencies in the worker’s work; has provided guidance and a reasonable period within which to improve work; and the worker has not improved performance within the period. Referring to Article 11 of the Convention, the Committee recalls that the only exception to the duty to give notice (or compensation in lieu thereof) is in respect of a worker’s serious misconduct. The Committee therefore requests the Government to provide information on the period of notice required to be given to workers whose employment is terminated for reasons connected with his/her conduct, with the exception of serious misconduct. It also requests the Government to provide information on the manner in which amended sections 189(1) and 180(a) of the Labour Law are applied in practice, and to provide copies of relevant court decisions in this regard.

Article 12. Severance allowance and other income protection. The Government indicates that, according to section 191 of the Labour Law, as amended, if the court determines that the employment contract was terminated without legal basis, the court shall, at the request of the worker, order reinstatement and compensation for damages and that corresponding contributions for compulsory social insurance be paid for the period in which the worker did not work. The Committee notes that the information provided by the Government relates to situations in which the employment relationship was unfairly terminated or terminated based on valid grounds, but where the employer failed to follow required procedures. It recalls that Article 12 of the Convention applies to all terminations at the initiative of the employer. The Committee requests the Government to indicate the manner in which Article 12 is given effect with respect to workers whose employment was terminated for a valid reason.

Article 13. Consultations with workers’ representatives. With respect to the procedures prior to or at the time of termination (Article 7), the Government indicates that an employer must provide a written notice of dismissal to the worker concerned. In response, the worker may attach the opinion of the trade union of which the worker is a member and the employer must take into account the union’s views. The Committee notes that no further information has been provided in reply to its previous comments under Article 13 with respect to consultations with workers’ representatives. The Committee refers to its previous comments and requests the Government to provide updated information on the outcome of the measures implemented under the “Redundancy Service Package” of the National Employment Action Plan, as well as to provide information with respect to other means of consultation with workers’ representatives (Article 13(1)(b)), and the manner in which these are applied in practice.

Application of the Convention in practice. The Committee once again requests the Government to provide updated information on the manner in which the Convention is applied in practice, including, for example, copies of court decisions concerning questions of principle relating to the application of the Convention and available statistics on the activities of the bodies of appeal (such as the number of appeals against unjustified terminations, the outcome of such appeals, the nature of the remedy awarded and the average time taken for an appeal to be decided upon) and on the number of terminations for economic or similar reasons in the country.