The Decision of Serbian Constitutional Court on unconstitutionality of the Article 179, paragraph 3, item 5 of the Labour Law
Serbian Constitutional Court ruled that provision of the Labour Law (the Article 179, paragraph 3, item 5 – one of the reasons for termination of employment) is unconstitutional.
Serbian Constitutional Court on 17 November 2016 issued a decision (the “Decision”) that the provision of the Article 179, paragraph 3, item 5 of the Labour Law (the “Law”) is unconstitutional. This provision prescribes that the employer may terminate the employment contract if employee’s behaviour represents an act of committing of criminal offense executed at work or related to work, regardless of whether criminal prosecution for a criminal offense was instigated against the employee.
Serbian Constitutional Court based this ruling on the non-compliance of this provision of the Law with the Article 34 of the Serbian Constitution – for the main reason that in application of this provision, during the procedure for determining of employee’s responsibility for breach of work discipline, the employer inevitably takes competencies of the court by determining whether or not the employee has committed a criminal offence on work or related to work.
The Decision will become applicable from the day of its publishing in the Official Gazette of the Republic of Serbia, and in accordance with the Law on Constitutional Court the Article 179, paragraph 3, item 5 of the Law shall cease to be in force on the day when the Decision is published in the Official Gazette of the Republic of Serbia.
How the Decision affects employers:
- The Article 179, paragraph 3, item 5 of the Law cannot be any longer applied, including to relations that arose before the day of publication of the Decision, except if they were finally resolved by that date;
- If the employment contract was terminated on several grounds, including on the basis of unconstitutional Article 179, paragraph 3, item 5 of the Law, the justification and legality of termination of the employment contract shall be evaluated based on other grounds for termination of employment;
- Any person whose rights were breached by resolution on the termination of employment issued on the basis of the Article 179, paragraph 3, item 5 of the Law, has the right to request from the employer to amend that individual act in accordance with the rules of procedure in which the individual act was brought. This proposal may be submitted within six months from the date of publication of the Decision in the Official Gazette of the Republic of Serbia, provided that not more than two years have passed between the delivery of the individual act and the submission of the proposal or initiative for initiating a procedure;
- If it is determined that change of an individual act cannot rectify the consequences which arose from the implementation of the provision of the Law ruled by the Constitutional Court not to be in compliance with the Serbian Constitution, the Constitutional Court may order for the consequences to be rectified by restitution, indemnification or otherwise.
- The employer should amend the employment rulebook / collective labour agreement at the employer if these documents contain provisions substantially identical to the provision of the Law that the Constitutional Court announced as unconstitutional.