Common reasons for redundancy
Termination of the employment contract does not represent a pleasant situation for both employee and employer, but it frequently occurs. This article will further describe the reasons for which an employee can become redundant due to the fact that laying off an employee is one of the most common reasons for the termination of a contract, as well as many legal actions, in general, are being taken due to the illegal termination of contracts.
In which situations is an employee redundant?
According to the Republic of Serbia Labour Law (“Sl. glasnik RS”, no. 24/2005, 61/2005, 54/2009, 32/2013, 75/2014, 13/2017 – decision US, 113/2017 i 95/2018 – authentic interpretation” – further: Labour Law) restrains an employer from laying off employees without giving reasons or explanation or taking appropriate actions. The goal of these rules is the protection of the employees in order to prevent employers from firing employees according to their free will.
An employer can terminate a contract if there is a justified reason regarding working capability or behavior in the following cases:
- if an employee doesn’t have results or necessary competence and knowledge for carrying out the work;
- if an employee has been legally convicted for a felony at a workplace;
- if an employee doesn’t return to work within 15 days from the expiration of the inactive employment status under Article 79 of the Labour Law, ie. unpaid leave from Article 100 of the same law.
Neglecting work duties
- If an employee has an irresponsible attitude towards duties at work;
- If an employee misuses the position or abuses authority;
- If an employee inexpediently or irresponsibly uses the tools at work;
- If an employee is either not using means for personal protection at work or using them inappropriately;
- If an employee neglects work duties described by the employment contract.
Disrespecting work discipline
- If an employee unjustifiably denies carrying out work and employer’s orders;
- If an employee does not bring proof concerning the temporary inability to work due to illness;
- If an employee abuses the right for the leave due to the temporary inability to work due to illness;
- If an employee comes to work under the influence of alcohol or other drugs, ie. uses alcohol or drugs during the working hours which can further affect employee’s work abilities;
- If an employee has given incorrect data that were crucial for getting the job;
- If an employee who works on high-risk jobs refuses to have health and ability assessment even though it is imperative;
- If an employee disrespects work ethics prescribed by the employer.
If an employer suspects that an employee is misusing rights for a leave due to illness, or some other aforementioned reasons, it is possible to send the employee to a health check. The check-ups and analysis are paid by the employer.
If an employee refuses to have these check-ups or analyses, the employer has the right to dismiss the employee because the refusal is considered as neglecting work ethics according to the Labour Law.
Finally, the employee can be laid off if there is a justified reason concerning the employer’s needs
- If due to technological, economical or structural changes there is no further need for a certain position or the work scope has been narrowed down;
- If an employee refuses the conclusion of the appendix regarding:
– taking up other duties because of the company’s needs or new business structure
– transfer to some other position at the same employer
– referral to work on a suitable position at another employer
– if an employer has provided rights to a redundant employee’s described in Article 155, Act 1 from the Labour law;
– change of the elements concerning the income of an employee stated in the contract, such as the minimum wage, work progress, bonuses, or others.
What is not a reason for dismissing an employee?
In the Labour Law it is stated that the justified reasons for dismissing an employee are not:
- the temporary inability of an employee due to illness, work accident or occupational disease;
- use of maternity leave, if the parent is on leave due to child care or special needs of the child;
- civil service;
- membership of a political organization, trade union, gender, nationality, language, social background, religion or any other belief;
- being representative of employees, in compliance with the Labour Law;
- contacting trade union or officials in charge of protection of civil rights in compliance with the Labour Law, general act or employment contract.
Suspension, penalty, notice
In certain situations, if an employer thinks that there are favorable circumstances of a case, so dismissal of an employee is not necessary, some form of warning can be applied.
The aim of the measure is to make employees improve work performance and continue working. The measures are pre-emptive and can take on the following forms:
- The employer can temporarily dismiss the employee with no payment. This suspension can last from one up to 15 working days;
- The employer can demand a financial penalty as high as 20% of the wage for the month in which the penalty has been imposed. Suspension of the wage can last up to three months.
- The employer can issue a notice announcing dismissal. The notice contains a statement that the employer will next time dismiss the employee without further notice if the same breach of the work duty occurs in the following six months.
It is important for employers to identify the reasons for dismissal prior to actualizing it. If there has been made a mistake during the identification of the reasons, the employee has good chances of succeeding in the civil action against the illegal dismissal. When deciding on the reason for dismissal there are two things one has to be cautious about – if the employee’s behavior is the reason for dismissal and what category that behavior belongs to.
Since it is often hard for employers to make difference between two or several reasons it is important to have a law agency to lean on. A law agency can offer support when identifying dismissal reasons and later realize the dismissal or notice.
Please contact us, if you have any additional questions regarding the dismissal reasons.
Author: Attorney at Law Pavleski Aleksandar