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Termination Due to Actions of Employee Constituting Criminal Act 

by Karanovic & Nikolic

Published: March, 2017

Submission: March, 2017

 



Amending the Labour law in July 2014 raised some arguable and sensitive issues regarding termination of the employment contract when employee's behaviour represents criminal act. In fact, it was the employer who decided if an employee's behaviour represent a criminal act. This is why the Constitutional Court found it important to define (i) if an employer competent and authorized to decide if certain behaviour is a criminal act and (ii) if termination on this ground is in breach of the presumption of innocence.


The Constitutional Court reasoned that this provision of the Labour Law essentially awards the employer with court's competences, because the employer determines if certain behaviour represent a criminal act. In the other words, the Constitutional Court considers that this was in breach the constitutional guaranties of the right to due process, legal certainty and the rule of law.


Given that the Constitutional Court published its decision 24 February 2017, it was then that the unconstitutional provisions ceased to be effective. This means that this provision is no longer applicable in any way.


This decision will have a strong impact to all pending labour disputes dealing with annulment of termination on the ground of the now unconstitutional provision of the Labour Law. According to some recent court practice, if the courts found that termination reasons are not in accordance with the law, they wold re-evaluate the employee's conduct prior to termination in order to check if there may have been other grounds for termination. However, this court practice is still far from being common, so it is unclear if the courts will engage in this review of employee's conduct in situations when the only reason for termination was formed under the now-unconstitutional provision.


Additionally, this decision of the Constitutional Court will also affect disputes already terminated. In cases when a provision of the law is found to be unconstitutional, employees have right to request from the employer to amend that specific resolution rendered on basis of an unconstitutional provision of the law. This can be done within the six months from the date of publishing the decision, i.e. until 24 August 2017, but only if such resolution was received less than two years from the day the unconstitutionality of a provision is published (in this case 24 February 2015). In case the employer refuses to amend resolution based on unconstitutional provision, employee could file a claim before the court requesting annulment of the unconstitutional resolution and damage compensation. However, in case the employee's request or claim is finally rejected, the employee has the right to challenge this via the procedure upon constitutional claim, where the Constitutional Court has the right to order restitutio in integrum,damage compensation or rectifying the consequences in some other way.


Employers should keep in mind that rulebooks and employment contracts should be amended in order to be compliant with the decision of the Constitutional Court.


In any event, employers may wish to review pending litigations as well as all terminations in the past two years to see if there have been terminations on the basis of the now-unconstitutional provision (employee's behaviour which represented a criminal act), in order to mitigate potential negative effects.


This has been prepared for informational purposes only and does not constitute legal advice. You should not act upon any information presented in this document without first seeking qualified professional counsel on your specific matter.


 



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