Compensación por despido injustificado - libre determinación de la Corte:
Article 191 (1) provides that in case an employment relationship is terminated unlawfully, reinstatement and/or compensation might be determined by a court of law according to the follow criteria:
(1) If a court determines during the proceedings that the employee's employment relationship terminated unlawfully, the court shall, at the request of the employee, decide that the employee shall be reinstated, compensated for damage, and that his contributions for compulsory social insurance shall be paid for the period in which the employee has not been working.
Compensation for unfair dismissal - Are there legal limits?:
Article 191 provides
(2) The compensation of damage referred to in paragraph 1 of this Article is determined in the amount of lost salary which includes the corresponding tax and contributions in accordance with the law, but does not include the compensation for meals during work, subsidy for the use of annual leave, bonuses, awards and other earnings based on contribution to business success of the employer.
(5) If the court, during proceedings, establishes that the employment relationship ceased unlawfully, and the employee does not seek reinstatement, the court shall, at the request of the employee, bind the employer to compensate the employee for damages in the amount of up to 18 employee's salaries, at most, depending of time spent in employment relationship with the employer, the employee's age and number of dependent family members.
(6) If the court, during proceedings, determines that the employment relationship ceased unlawfully, but during the proceedings the employer proves that the circumstances exist which reasonably indicate that the continued employment, taking into account all the circumstances and interests of both sides in the dispute, is not possible, the court shall deny request of the employee to be reinstated and order the employer to compensate employee for damages in the double amount of the damages determined under paragraph 5 of this Article.
(7) If the court does determine that there were grounds for termination of employment relationship, but that the employer acted contrary to the provisions of the law which prescribe the procedure for termination of employment, the court shall reject the request of the employee to be reinstated, and shall order the employer to compensate the employee's damages in the amount of up to six salaries.
(8) Salary under paragraphs 5 and 7 of this Article is considered to be the salary the employee earned in the month preceding the month in which his employment relationship was terminated.
(9) Compensation from paragraphs 1, 5, 6 and 7 of this Article is reduced by the amount of earnings that the employee earned on the basis of work, after termination of employment relationship.
Compensación por despido injustificado - límites legales (techo calculado en meses o método de calculo):
See explanation about legal ceilings of article 191 above.
Posibilidad de readmisión:
See explanation on legal ceilings of Article 191 above.
Note that, when reinstatement is ordered, the employer shall also pay compensation for the lost salary and other emoluments which the employee is legally entitled to.
Conciliación previa obligatoria:
The only mandatory Alternative Dispute Resolution System in Serbia is the Workplace Mediation: This kind of mediation is regulated by The Law on Prevention of Harassment at Workplace of 2010 . Allegations of mobbing against co-employees or mid-level management have to be first submitted workplace mediation and the procedures should be quick. The request can be made by the employee, trade union, workers representatives, committee on occupational safety and health members, with the consent of the employee, who cannot be exposed to any disciplinary measures or dismissal (Article 27 of the Law). The mediator can be chosen from the List of mediators kept with the employer or by the social partners or the state, like the National Agency for Peaceful Settlements in Labour Disputes . According to Article 13, the employee must exhauste the possibilities of amicable resolution through workplace mediation before seeking for reddress in a court, except in the cases where the charges are pressed against the employer or against a natural person responsible for the enterprise. In case mediation fails or the plaintiff is not satisfied with its outcome, it is possible to initiate a court procedure. Also, if the mediation procedure shows that there are reasonable grounds to suspect that harassment has been in fact committed, the employer shall take measures to prevent new situations and to hold the person resposible accountable.
Corte o Tribunal competente:
Article 21 of the Law on Organization of Courts (2002): the civil (municipal) court has jurisdiction to hear termination of employment disputes at first instance.
According to Labour Law, articles 195 and 196, an employee or trade union empowered by the employee may initiate legal proceedings before a competent court against a decision violating the employee’s right or upon becoming aware of violation of such right, in 90 days to 3 years, depending on the subject of the claim. Labour disputes are inserted in the civil courts´jurisdiction, except when related to discrimination and mobbing, which shall be analysed by Higher Courts directly. Labour disputes in civil courts are subjected to specific regulations of Civil Procedure Act (Litigation Law).
-Workplace Arbitration: According to Article 194 of Labour Code and article 30 of The Law on Peaceful (Amicable) Settlement of Labour Disputes, parties can turn to arbitration to resolve individual labour disputes arising from violation of rights and the regulations for that shall be provided by rulebooks or employment contracts, that must describe possible means of consensual conflicts resolution means. The arbitrator shall be consensually agreed by the parties in dispute from the ranks of experts in the field that is the subject of dispute During the arbitration proceedings, all the actions related to termination of employment contract shall be suspended. The decision is binding
- Arbitration at the National Agency for the Peaceful Settlement of Labour Disputes: The procedure is initiated by filing a joint or individual motion to the Agency. If the motion is filed by one party, the Agency immediately submits it to the other party for acceptance which is to be acknowledged in 3 days. If the acceptance is received, the parties mutually select the arbitrator or let the Agency Director appoint one. The ruling must be passed after no longer than 30 days after the initial hearing and cannot be appealed against, except in very specific cases where ancillary remedies might be used to challenge the decision in a cout. Decision becomes valid and is enforced on the day when it is delivered to the parties in dispute.
Duración del procedimiento:
Article 194 of Labour Law: In case of amicable dispute resolution, a decision shall nbe provided in 10 days.
Art. 195 Labour Law:
The legal proceedings may be initiated 30 days after the decision has been served to the employee.
The dispute before the court shall be terminated 6 months after initiation of the proceedings at the latest.
Carga de la prueba:
According to article 188 of Labour Law, the burden of proof in most cases related to termination of employment contract belongs to the employer. Likewise, for cases regarding discrimination (Labour Code Article 23).