No. 07-00-143/2020-02 date: 18.12.2020.
OPINION
The opinion was issued in the procedure regarding the complaint filed by AA from BB against the Preschool Institution “VV” from BB. In the complaint, the applicant stated, among other things, that in June 2019 she became employed at PI “VV” as a waitress, and that when signing the employment contract, she also signed a decision on consensual termination of employment (blank). She stated that she is a single mother of three minor children, that she had taken a sick leave due to the “middle child’s” illness, and that after returning from absence from work due to childcare, she was handed a pre-signed decision on termination of employment, with the explanation that she was “unreliable”, but also “that the doors of the kindergarten remain open, when her children grow up”. The statement of PI “VV”, among other things, notes that this institution treats its employees with “great care and dedication”, and that the complainant was allowed, in agreement with her employer, to take unused cooked meals, which were fresh and healthily prepared, home to her children, free of charge. They also stated that they questioned the veracity of the complainant’s claim that she “had to” sign a blank consensual termination of employment, given that the main activity of this institution is the care of children and their upbringing, and that they are not “bullies” who would “force” anyone to do something “outside of the law”. After due procedure and examination of presented evidence, the Commissioner first ascertained that the complaint was filed regarding two events that resulted in termination of employment of the complainant: 1) conditioning the complainant to sign a consensual termination of employment in advance when she got employed, and 2) by delivering the aforementioned decision to her after she returned from absence for taking care of a sick child. Upon inspection of the decision on consensual termination of employment, it was noticed that the entire text of the agreement was typed, except for the date of termination of employment, which was entered by hand. This raises the suspicion that the date of termination of employment was left unfilled when the agreement was created (typed), only to be filled in later, when the employer decided to do so. The Commissioner further determined that the notice accompanying the consensual termination of employment agreement clearly stated that the complainant was not entitled to financial compensation, nor to health insurance for close family members. Having in mind the above, the complainant had no reason to deprive herself and her three minor children of regular income and health insurance for children, only a few days after returning from sick leave. Therefore, the explanation that imposes itself is that her signature was already on the decision on termination of employment, and that the employer subsequently added a date. The complainant’s sick leave was some sort of a “trigger” for the employer to terminate the cooperation with the employee whose commitment to work was “questioned”, which sent a message to other employed women that they can expect the same treatment if they are absent from work due to childcare. PI “VV” did not submit any evidence in support of the claim that the decision on consensual termination of employment was not signed when the complainant got employed. Although PI “VV” was made aware, when submitting their statement regarding the complaint, that the rules on shifting the burden of proof applied, they did not once refer to the events that preceded the termination of the complainant’s employment, nor did they ascertain in their statement whom, when and how the employee addressed and requested termination of employment, what was said on that occasion, and the like. Also, PI “VV” did not propose hearing any witnesses who would confirm that the employer does not practice, nor has he ever practiced signing a decision on consensual termination of employment in advance. On the other hand, on the basis of the submitted evidence, it is indisputable that during her work in PI “VV”, the complainant was absent from work due to childcare only in the period from the 4th to the 14th of February 2020, and that her employment in that preschool institution was terminated on February 19th, 2020. Taking into consideration all of the above, and bearing in mind the rule on redistribution and transfer of the burden of proof from Article 45 of the Law on Prohibition of Discrimination, as well as available statistics showing that women, especially single mothers with small children, are at high risk of dismissal by the employer, it can be stated that PI “VV” did not prove that the reasons why the complainant’s employment in that institution was terminated, immediately after she returned from sick leave, were not related to the fact that she was temporarily absent from work to care for a sick child and that her family circumstances (single mother of three minor children) require occasional absences from work. Therefore, the Commissioner gave the opinion that PI “VV” violated the provisions of Articles 6 and 20 of the Law on Prohibition of Discrimination. The preschool institution “VV” was recommended to eliminate the consequences of discriminatory treatment, by offering the complainant a new employment contract in case of a vacancy, as well as to take care in the future to comply with the regulations on prohibition of discrimination and not to condition employees by any act or action, only out of fear that they might be absent from work due to taking care of a child or a close person, or due to the health condition of the employee or persons related to them.
COMMISSIONER FOR THE PROTECTION OF EQUALITY
Brankica Janković
