No. 07-00-488/2024-02 date: 13.12.2024.

OPINION

The opinion was issued in the proceedings regarding the complaint filed by attorney A. A. on behalf of B. B. against Preschool Institution V. V. due to discrimination based on disability. The complaint states that the complainant is employed at PI V. V. as a preschool educator and that she performs her duties in accordance with the proposal of the medical commission according to the decision of the National Employment Service – Valjevo Branch, No. 0700-1002-140/2012, based on which she was determined to have the 1st degree of difficulties and obstacles in work. The complaint states that she obtained a master’s degree in preschool education in December 2023 and that she sent a written request to the PI V. V. for amendment of the employment contract, namely, that the employer change the level 6 of professional qualification to the level 7.1st of professional qualification but the employer did not respond to this request. She also pointed out that during the same period, four of her colleagues acquired the title of master un preschool education and that their employment contracts were changed, that is, the employer “adjusted their level of education from 6 to 7.1”. V. V.’s statement specified that B. B. had been employed as a librarian since 2008 “when she was diagnosed with an illness due to which she was recommended not to work directly with children”, and that with the enactment of the Law on Preschool Education, it was no longer possible to hire a librarian, so in 2011 she was assigned to the position of a preschool educator but without direct educational work with children. It was further stated that the PI V. V. amended the employment contracts based on the qualifications of four employees assigned to the positions of preschool educators and that they did not submit requests for adjustment, but rather copies of their diplomas of acquired education. It was emphasized that the fact of the complainant’s higher education was considered at the same time as the facts relating to the aforementioned preschool educators, but that the position was taken that the founder has no interest in paying additionally an employee who does not perform the main job of a preschool educator and that the work performed by the employee (keeping the yearbook, keeping the register of enrolled children, attending educational councils) does not require additional education nor does it contribute to it in any way. The Commissioner analyzed the allegations from the statement and complaint, as well as the applicable regulations of the Republic of Serbia in the field of preschool education and the prohibition of discrimination, in order to determine whether the employer placed the complainant in a less favorable position compared to the other four employed preschool teachers by not amending her employment contract in accordance with her master’s degree of preschool educator. The Commissioner first noted that the regulations in the field of upbringing and education indicate that the main role of preschool educators in preschool institutions is based on direct educational work with children. In this regard, it is understandable that the employer acknowledged the fact of the education acquired through master’s studies by preschool educators who carry out direct educational work with children. On the other hand, the fact that the complainant does not carry out direct work with children was taken as a reason for not recognizing her 7.1. level of professional qualification that she had acquired in the meantime. The Commissioner analyzed whether such a distinction was justified and lawful, taking into account the regulations on the prohibition of discrimination and labor regulations. Namely, the Commissioner first points out that the aforementioned changes in B. B.’s employment and the tasks she performs occurred due to the adaptation of the workplace to her disability. In this specific case, the employer adapted the workplace by assigning B. B. to the position of librarian, based on her remaining working capacity. However, after amendments to the Law on Preschool Education and the adoption of by-laws, the employee could no longer hold the title of librarian, so the employer adapted her workplace in another way, by signing an annex to the employment contract on August 31, 2021. With this annex to the employment contract, B. B. was assigned to the position of associate preschool educator, with a job description without direct work with children. At the moment the employer adjusted the workplace for B. B. in accordance with her disability and assigned her to the position of preschool educator, he equalized her status and rights arising from employment with those of the other preschool educators. The obligation to make reasonable adjustments to workplaces/jobs aims to ensure that all employees have the same access to employment, performance of work, or retention of employment, as well as career advancement, regardless of their disability. Therefore, after conducting an analysis of the allegations in the complaint and statement, it can be concluded that if B. B. was not diagnosed with a disability due to which she was recommended not to work directly with children, she, like other employees employed in the position of preschool educator, would have the level of education she acquired recognized. In this regard, the Commissioner points out that since the employer adjusted the tasks of the workplace to the complainant’s disability due to her established disability, this must not be a reason for her to suffer consequences due to such adjustment in comparison to other employees who do not have an established disability. In this regard, the fact that B. B. does not perform direct educational work with children (not because she does not want to or will not do so, but because it was recommended by a decision of the competent authority that established the first degree of difficulty in work), cannot be a justified reason for not recognizing the acquired level of education (level 7.1), if this right has already been recognized for other preschool educators. In other words, the employer assigned B. B. to the workplace of a preschool educator, which he adjusted to her disability precisely by excluding direct educational work with children. Therefore, he cannot later point out this fact as a reason for not treating her equally with other preschool educators and putting her in a less favorable position because of it. Regarding the allegations in the supplement to the complaint that the employer victimized B. B. by having the director of the PI V. V. request that she submit a description of the tasks she performs in the form of a work report, the Commissioner is of the opinion that this fact does not constitute calling her to account. Also, the provisions of the Regulation on the organization and systematization of work in the PI V. V., Valjevo No. 8592 of September 24, 2021, and the Regulation on amendments to the Regulation on the organization and systematization of work in the PI V. V., Valjevo No. 8730 of October 4, 2023, stipulate the obligation of work performers to promptly and truthfully inform their immediate supervisor about the progress of work and work tasks, the conditions and circumstances under which the tasks are performed, and other important facts for their implementation. Taking into account all of the above, the Commissioner issued the opinion that, in the part of the complaint concerning the recognition of the acquired professional qualifications of the complainant in the same way as for other employees working as educators, the PI V. V. violated the provisions of Articles 16 and 26 of the Law on the Prohibition of Discrimination, while in the part of the complaint relating to the victimization of B. B., the Commissioner is of the opinion that the Preschool Institution did not violate the provisions of Article 9 of the Law on the Prohibition of Discrimination. The Preschool Institution was given the recommendation to eliminate the consequences of the act of discrimination and place B. B. in an equal position with other employees with the same title concerning all rights based on work.

COMMISSIONER FOR THE PROTECTION OF EQUALITY
Brankica Janković