no. 07-00-419/2023-02 date: 20.3.2024.

OPINION

The opinion was issued in the procedure regarding the complaint of AA against the employer, hospital BB (from now on: the employer), VV, acting director of the employer, and GG, the then deputy director at the employer, which she submitted considering that the actions of the employer and responsible persons at the employer discriminated against her based on her disability and health condition. The complaint stated, among other things, that the complainant is a specialist in internal medicine by profession – a subspecialist in pulmonology, that some time ago, she was diagnosed with a disc herniation in the cervical and lumbar parts of the spine, and that this disease limits her in performing not only work but also private duties, that the National Employment Service made a decision regarding the evaluation of the complainant’s work ability, in which it was stated that she can not perform certain tasks, i.e., that certain restrictions on her performance of work were determined, that the employer “even today forces her to tasks that may endanger her health and safety at work,” and that, after assessing her work capacity, the employer offered her an annex to the employment contract in which it was stated that the complainant “has to perform emergencies”, which implies frequent resuscitation of patients, and which would lead to the worsening of the complainant’s health condition. It was also pointed out that the employer’s management insisted on July 27, 2023, that the complainant go to the intensive care unit and examine a patient, which, according to the complainant, “would, in any case, mean that she has to take antalgic body positions”, which she believes is prohibited according to the Decision of the National Employment Service. In the statement on the allegations from the complaint, and the supplement to the statement of acting director VV and GG, then deputy director, among other things, it was stated that the complainant submitted to the employer the Decision of the National Employment Service – DD Branch, that in the explanation of this Decision, it was specified that the complainant is not fit for jobs with greater physical load, for work in a forced position of the body, work in night shifts, as well as work in the field, and extended work, i.e., that the complainant is capable of her work with the mentioned restrictions, and as an example it is stated that the named person can work in the clinic, that the employer, after receiving the Decision above, concluded an annex to the employment contract with the complainant dated August 16, 2023, as well as that all the jobs listed in the annex do not require the complainant to have a greater physical load, and that they are not performed in a forced body position, nor do they require night work, work in shifts and in the field or extended work, that the complainant’s interpretation that she can only work in the outpatient clinic is wrong, but that the work in the outpatient clinic in the NES Decision is only “listed as an example” where the complainant could perform her work tasks. Regarding the issued work order dated July 7, 2023, it was stated that the complainant did not do, nor does arterial blood sampling, but that on July 7, 2023, the complainant was indeed called around 10:30 a.m. to come to the intensive care unit for a consultative examination and opinion on the further treatment of the patient. With the supplement of the statement, among other things, a letter dated January 31, 2024, was submitted from the “ĐĐ” Company, a licensed legal entity that is authorized to prepare regulations on risk assessment for workplaces, in which the person for occupational safety and health stated that all jobs from the last annex of the complainant’s employment contract do not pose a risk of worsening her health condition. To properly and fully establish the factual situation in this case, the Commissioner requested from the “ĐĐ” Company, as a licensed legal entity for the performance of occupational safety and health, to additionally clarify and specify whether the performance of tasks within the scope of the work order issued to the complainant on July 27, 2023, also did not pose a risk of deterioration of her health condition. In their letter dated March 18, 2024, the “ĐĐ” Company stated decisively that all tasks that the complainant performs according to the last annex of the employment contract as well as the tasks within the work order dated July 27, 2023, do not represent, that is, did not represent a danger of deterioration of her health condition. The Commissioner for the Protection of Equality, based on all the evidence submitted during the procedure, analyzed the tasks that the complainant performed according to the penultimate annex of the employment contract (which was concluded before the adoption of the Decision of the National Employment Service – DD Branch), as well as the tasks assigned to the complainant according to the last annex of the employment contract based on the adopted Decision of the National Employment Service – DD Branch. In this regard, it was established that according to the last annex of the employment contract, a certain number of previously prescribed tasks for the complainant were reduced, although certain tasks are performed outside the clinic’s premises. In addition, the last annex of the employment contract specifically stated that the complainant would not perform tasks related to tasks with greater physical load, work in a forced body position, work in night shifts, work in the field, and extended work. Considering that it was disputed between the parties whether the complainant could perform tasks outside the clinic, including “emergencies,” and based on the fact that the licensed legal entity for performing safety and health tasks gave an opinion that the tasks described in the complaint, i.e. tasks from the work order from July 7, 2023, and tasks from the last annex of the employment contract do not pose i.e., did not pose a risk of deterioration of the complainant’s health condition, as well as that in the last annex of the employment contract it was specifically stated that the complainant would not perform tasks related to tasks with greater physical load, work in a forced position of the body, work in night shifts, work in the field and extended work, the Commissioner is of the opinion that the employer, and thus the acting director of the employer and his deputy at the time, as management bodies at the employer, did not violate the provisions of the Law on Prohibition of Discrimination when issuing the work order dated July 7, 2023, as well as when assigning the complainant to another workplace, i.e., to perform other tasks following the concluded last annex to the employment contract. In this regard, the Commissioner issued opinion that hospital BB, as well as VV, acting as the employer’s director, and GG, the then deputy director at the employer, did not violate provisions of the Law on Prohibition of Discrimination.

COMMISSIONER FOR THE PROTECTION OF EQUALITY
Brankica Janković