Employee's rights in case of dismissal - what you need to know?
The termination of the employment relationship, namely by the termination of the employment contract by the employer, is a particularly important topic in the field of labor law because it carries with it consequences that can be of existential importance for the employee and his family members. Although the relationship between employer and employee is often seen as a relationship between two unequal parties, as a relationship between a "gigantically strong" employer and a "weak" employee, the laws in the Republic of Serbia, and above all the Labor Law, which regulates the field of labor relations to the greatest extent, provide for the entire body of legal rights of the employee in case of dismissal employment contract, as well as in the case of illegal dismissal.
It should always be kept in mind that, although companies seem to have a dominant position in relation to the employee, they have the obligation to comply with valid legal regulations in their operations, and especially in their relations with employees. The question arises, how to protect yourself from illegal termination of an employment contract, and what to do if the aforementioned unwanted and stressful situation occurs, so we will try to explain what the employee's legal rights are, as well as what steps should be taken, in order to protect yourself from illegal termination of the employment contract.
Illegal dismissal? You can get legal protection!
If your employer unfairly or illegally terminated your employment contract, you have rights as an employee that you can protect. Our team of employment law attorneys can help you understand your legal options and obtain appropriate compensation or reinstatement.
Contact us and protect your rightsTypes of dismissal and how they affect the employee's rights
First of all, it is necessary to delineate the various reasons for the termination of the employment relationship, provided by the Labor Law. The employment relationship ends:
- Upon expiry of the term for which it was established;
- When the employee reaches the age of 65 and has at least 15 years of insurance experience, unless the employee and the employer agree otherwise;
- Agreement between employee and employer;
- Termination of the employment contract by the employer or the employee;;
- At the request of a parent or guardian of an employee under the age of 18;
- Death of the employee;
- In other cases established by law.
On the basis of the aforementioned legal article, it can be concluded that the termination of the employment contract by the employer is only one of several ways of terminating the employment relationship. Considering the importance of this reason for termination, we will pay special attention to it.
What are the reasons that the law recognizes as justified, due to which the employer has the right to terminate the employment contract of the employee? The law stipulates the following: An employer may terminate an employee's employment contract if there is a justified reason for doing so related to the employee's ability to work and his behavior, namely:
1) if he does not achieve the results of his work or does not have the necessary knowledge and abilities to perform the tasks he is working on;
2) if he has been legally convicted of a criminal offense at work or in connection with work;
3) if he does not return to work for the employer within 15 days from the date of expiry of the period of suspension of employment from Article 79 of the Labor Law, i.e. unpaid leave from Article 100 of the Labor Law.
The employer can cancel the employment contract of an employee who, through his own fault, violates his work obligations,namely:
1) if he negligently or negligently performs his work duties;
2) if he abuses his position or exceeds his authority;
3) if he uses the means of work inappropriately and irresponsibly;
4) if he does not use or does not use the provided means or equipment for personal protection at work;
5) if he commits another violation of the work obligation determined by the general act, i.e. the employment contract.
The employer may terminate the employment contract of an employee who does not respect work discipline, namely:namely:
1) if he unjustifiably refuses to perform tasks and carry out the orders of the employer in accordance with the law;
2) if he fails to submit a certificate of temporary incapacity for work in the sense of Article 103 of the Labor Law;
3) if he abuses the right to leave due to temporary inability to work;
4) due to coming to work under the influence of alcohol or other intoxicants, that is, the use of alcohol or other intoxicants during working hours, which has or may have an impact on the performance of work;
5) if he provided incorrect information that was decisive for establishing an employment relationship;
6) if an employee who works in jobs with increased risk, in which a special health condition has been determined as a special condition for work, refuses to be subjected to a health condition assessment;
7) if he does not respect the work discipline prescribed by the employer's act, i.e. if his behavior is such that he cannot continue working for the employer.
The employer may send the employee to an authorized health institution designated by the employer, at his own expense, for an appropriate analysis in order to determine the circumstances referred to in paragraph 3. item. 3) and 4) of this article or to determine the existence of the mentioned circumstances in another way in accordance with the general act. The employee's refusal to respond to the employer's invitation to perform an analysis is considered a breach of work discipline in the sense of paragraph 3 of this article.
An employee can terminate his employment relationship if there is a justified reason for this, related to the needs of the employer, namely: namely:
1) if due to technological, economic or organizational changes, the need to perform certain work ceases or there is a reduction in the scope of work;
2) if he refuses to conclude the annex to the contract in the sense of Article 171, paragraph 1, point. 1-5) of the Labor Law.
The aforementioned legal articles clearly provide that the employer is not completely free to make a decision on the termination of the employment contract, but the termination of the employment contract must be preceded by the existence of a reason due to which the employer decides to terminate the employee. This further means that the employer cannot just state any legal reason for the termination of the employment contract, but the reason it must really exist. The employer is obliged to state the reason for the dismissal in question and to explain it. Any termination of the employment contract that is not done for the reasons and in the manner provided by law represents illegal termination of the employment contract..
It is especially important to note that the Labor Law provides for cases of special protection against termination of the employment contract. This means that during pregnancy, maternity leave, leave from work for child care and leave from work for special child care, the employer cannot the employment contract. It is important to note that for an employee who is in one of the above-mentioned situations, the period for which he has contracted a fixed-term employment relationship is extended until the expiration of the right to leave.
If a situation occurs where the employer, despite knowing of the existence of the above-mentioned circumstances in which dismissal cannot be given, still gives notice to the employee, such a solution will be null and void.Also, the decision will be null and void in a situation where the employer gives notice to the employee, and the employee informs the employer about the existence of the aforementioned circumstances within 30 days from the date of termination of employment, by submitting the appropriate document in the form of a certificate from an authorized doctor or other competent authority.
Procedure for termination of the employment contract
Is the procedure for terminating an employment contract the same regardless of the reason for termination provided by law? It's not. Depending on the reason for termination, the employer has different obligations. Therefore, if there is a reason for termination that belongs to the group of terminations due to the existence of a justified reason related to the employee's ability to work and his behavior, existence of a justified reason related to the employee's ability to work and his behavior,the employer is not obliged to provide the employee with a written warning about the stated reasons before terminating the employment contract.
On the other hand, if it is a reason for termination that belongs to the group of termination due to violation of work obligations due to the fault of the employee,as well as due to a violation of work discipline,the employer will be obliged to inform the employee of the existence of the reason for the termination of the employment contract before the termination, and to give him a deadline that must not be shorter than that prescribed by law, so that the employee has the opportunity to respond to the aforementioned written notice.This notification must be such in terms of content, that the employee is clearly presented with the grounds, as well as the facts, on the basis of which the employer considers that the employee should resign. If the employer does not submit such a notification, or if it is submitted without the specified necessary elements, such termination cannot be considered legal.
In the event that there are legal grounds for dismissal, the employer makes a decision on the termination of the employment contract, which is made in writing, and which necessarily contains an explanation and instructions on the right to appeal against that decision.
After the employee has been dismissed, the employer is obliged to pay the employee all unpaid wages,salary allowances and other income earned by the employee up to the date of termination of the employment relationship, within the period stipulated by law. An employee whose employment relationship has ended, also has the right to request from the employer a certificate containing the date of establishment and termination of the employment relationship and the type or description of the jobs he worked on.
Severance pay is the amount of money that the employer is obliged to pay to the employee in case of termination of the employment contract by the employer, and in the event that the employee is dismissed for a justified reason related to the employer's needs, specifically, if due to technological, economic or organizational changes, the need to perform a certain job ceases or there is a reduction in the scope of work,as well as if the employee refuses to conclude an annex annex to the employment contract offered to the employee in accordance with the law.
The question of how much severance pay is paid to an employee naturally arises. The law stipulates that the amount of severance pay is determined by a general act or employment contract, while the law stipulates the minimum severance pay that the employer is obliged to pay.
What actions to take in case of termination of the employment contract?
It goes without saying that getting fired is not only a source of great dissatisfaction, but also a circumstance that affects an individual's existence in an economic sense. Therefore, it is important to "cool-headedly" interpret the circumstances that led to the dismissal, and it is recommended to hire a lawyer who will review all documentation on the termination of the employment contract, and observe whether there are any illegalities in the employer's actions. It is especially important to recognize whether the employer has given the opportunity to make a statement on the warning about the existence of reasons for the termination of the employment contract, as well as the appropriate deadline for making a statement.
If the employee, alone or with the professional help of a lawyer, comes to the conclusion that it is an illegal dismissal, he has the right to initiation of legal proceedings. If the court determines that the employee's employment relationship has ended without legal grounds, it will decide, at the request of the employee, that the employee return to work, that he be paid compensation for damages and payment of the corresponding contributions for mandatory social insurance for the period in which the employee did not work.
Problems regarding the termination of the employment contract
Although we came to the conclusion at the beginning of this blog that, legally, the position of employer and employee is not a relationship of superiority and subordination, but a relationship of two completely equal parties, practice indicates that employers often use their status and economic power to the detriment of employees.
Employers often in an immoral way put the employee in a position to agree to some circumstances of the termination of the employment relationship, such as signing an agreement on the termination of the employment relationship, which otherwise he would not have done. In those situations, it happens that the employer uses the weakness and powerlessness of the employee in order to influence his actions.
It is important to know that employees have a whole range of rights in case of termination of the employment contract, and that they have complete freedom to seek legal assistance labor law attorney, in order to realize their rights in full, and prevent potential illegal actions of the employer.
If any of the readers find themselves in the situation of termination of the employment contract, and at the same time have doubts about the legality of it, we hereby invite you to contact us and ask any question that interests you regarding the matter in question, and we will try to answer the same and provide you with all the necessary legal assistance in order to eliminate all the negative consequences of the termination.
FAQ
1. CAN CANCELLATION BE GIVEN ORALLY?
In short, termination cannot be given orally. The employer must notify the employee of the dismissal in writing.
2. Can I be fired during pregnancy?
An employee who is on leave due to pregnancy, maternity leave or child care leave is not allowed to resign.
3. How long is the notice period?
The notice period cannot be longer than 30 days, but it can be shorter, depending on the Employment Agreement.
