No. 07-00-459/2025-02   Date: 5.11.2025.

OPINION

The Opinion was adopted in proceedings conducted following complaints submitted by A.A. and B.B. against the Public Enterprise “Pošta Srbije” on the grounds of discrimination based on political beliefs and trade union activities. Given that the complaints concerned the same legal matter, the proceedings were joined. In the complaints and their supplements, it was stated, inter alia, that the complainants are employed at a small post office in Kotež (post office No. 11217 Belgrade 157), where three positions are systematized, but the work was performed only by the two of them. It was further stated that on 5 March 2025 they participated in a protest of employees of the Public Enterprise “Pošta Srbije” held in front of the Main Post Office in Takovska Street in Belgrade, where A.A., as one of the organizers, read out the workers’ demands addressed to the Supervisory Board. She emphasized that she is a member of the trade union “Solidarnost – Pošta Srbije” and that at no time was there a formal work stoppage, but rather a call to join the students and support their demands, accompanied by the public release of the report of the State Audit Institution, which had been published at that time and which revealed that the employer had suffered damage amounting to millions of euros due to non-transparent and negligent management by the leadership. According to the further allegations, already on 6 March, during a television program, the Acting Director General of the Public Enterprise “Pošta Srbije” publicly singled out the participants in the protest and accused them of abusing children who were the children of employees, stating that he would therefore address the Commissioner for the Protection of Equality. They further stated that on 7 March, after participating in support of the students’ call for a general strike, they received several calls from the Human Resources Department of the Belgrade Center Work Unit claiming that there were complaints that they were not working, although they were working with reduced capacity in accordance with the law. They also stated that, after one hour from the beginning of the shift, they decided to end the strike following a verbal warning and continued to work at full capacity, which can be verified through the Post TIS system. However, shortly thereafter, colleagues were sent who, by order, took over the post office facility even though the complainants were at their workplaces and performing their work duties. The complainants further stated that, despite being prevented from performing their work, they remained at work until the end of working hours, and that their salaries for that month were reduced by seven hours under the designation “work stoppage,” although there was no legal basis for this. Complainant AA stated that on 25 March she received a verbal offer to be transferred to another work unit, without any explanation, to a lower-ranking position. Thereafter, on 31 March she received a written offer and an annex to her employment contract for a post office in Ripanj, which is two hours away by public transport from her place of residence in Kotež. She refused to sign it and provided a written explanation to the employer stating that the transfer represented retaliation for her public engagement. She further stated that through this transfer the employer intended to place her in a less favorable position compared to her colleagues and in deviation from the usual practice in assigning places of work to employees. She emphasized that when the employer assigns employees to work in another post office (temporarily), and particularly when doing so permanently through an annex to the employment contract, the employer normally ensures that employees work in the part of the city where they live or relatively close to it, and that only when the employer wishes to force an employee to resign does it act as in her case. She also indicated that her request to use previously accrued annual leave was subsequently rejected verbally, even though the usual practice is to allow employees to use their annual leave, and that the employer departs from this practice only exceptionally, usually when “punishing employees.” Complainant BB also stated that on 31 March she received a decision temporarily transferring her to another post office located far from her place of residence, and that on 24 April 2025 she subsequently received an Annex on permanent transfer to the same post office 11110, which she did not sign. She pointed out that the annex merely effected a rotation, since a colleague from that post office came to her position while she was assigned to the colleague’s position, thereby directly contradicting the reasons stated in the annex, namely that the transfer was necessary due to urgent operational needs. She further stated that she provided a written response to the proposed annex explaining the reasons for her refusal, which she considers a form of punishment and intimidation, as well as discrimination on the grounds of freedom of opinion and expression and her participation in the protests. In the statement and supplementary statement of the Acting Director General of the Public Enterprise “Pošta Srbije,” responding to the allegations in the complaints and the submitted evidence, it was stated that the transfers of the complainants were carried out exclusively for the purpose of improving the organization of the work process and better utilization of human resources, that is, for the more efficient functioning and improvement of the existing level of the Postal service’s work processes, as indicated in the notification offering the conclusion of an annex to the employment contract. It was further stated that the transfers were carried out taking into account their previous work experience, high level of professional competence and achieved productivity in the respective post offices, as well as the assessment that their transfer, carried out in the described manner through a “rotation,” would contribute to improving the overall productivity of the post offices to which the named employees were transferred. The statement also notes that Article 173 of the Labor Law prescribes that an employee may be transferred to another place of work if the distance from the place where the employee works to the place to which they are transferred is less than 50 km, and if regular transportation is organized that enables timely arrival at and return from work, with reimbursement of transportation costs in the amount of the public transport ticket. It was further stated that transfers of employees, whether temporary, for a period of up to 45 days, or permanent, by concluding an annex to the employment contract and in the aforementioned manner, are implemented daily throughout the entire operational area of the enterprise in a significant number of cases, in order to ensure continuity in the provision of postal services across the territory of the Republic of Serbia, which represents an obligation of the Enterprise in accordance with the provisions of the Law on Postal Services. Having regard to the stated reasons for the transfer of the complainants, the Commissioner for the Protection of Equality points to the provision of Article 172(1) of the Labour Law, which prescribes the employer’s obligation to provide the employee with a written notice which, among other things, contains the reasons for the proposed annex to the employment contract. The reasons provided in the offer should not consist of a generalized formulation without an explanation of the specific reasons, as was done in the offers to conclude annexes to the employment contracts of the complainants, bearing in mind that the employee’s full awareness of all facts relating to the reasons for their transfer to another position is necessary already at the stage of the written notification of the proposed annex to the contract, a position also reflected in judicial practice. The Commissioner further points out that offers of annexes to employment contracts must contain several elements. First, it must be clarified whether the tasks concerned are the same or of a similar nature, not only with regard to the general level of the employee’s professional qualifications but also in relation to the specific tasks the employee previously performed under their employment contract prior to the annex. In the present case, this requirement was not met, since AA was transferred from the position of post office manager to the position of counter operations technician II. Second, there must be a specification of the needs of work organization – namely whether a surplus occurred in the work unit from which the employee is transferred and a shortage in the work unit to which the employee is transferred. An examination of the submitted evidence clearly shows that, in the case of the complainants, only a rotation of employees was carried out, thereby challenging the reasons stated by the employer. Namely, as also indicated in the statement of the Post, the transfer of BB to Post Office 11110 Belgrade 15 was implemented simultaneously with the transfer of employee D.D. from that post office to Post Office 11110 Belgrade 15, where the complainant had previously worked. In addition, the fact that the employer returned AA to her previous position without providing any explanation further calls into question the reasons for the transfer stated in the annexes. Furthermore, the employer is obliged to determine whether there are employees in other work units who reside closer to the work unit to which an employee is to be assigned. If such employees exist, it is not justified to assign an employee from a more distant unit. The limit of 50 kilometers does not grant the employer unrestricted discretion to transfer employees within that radius without any organizational justification, but rather represents an objective limit beyond which transfers cannot be made even when all other conditions are fulfilled. In any case, it does not imply discretionary authority but only a possibility. With regard to this circumstance, the Post did not provide a specific explanation, but merely referred to the provision of Article 173 of the Labor Law. Proceeding from Article 45 of the Law on the Prohibition of Discrimination, the Commissioner first notes that the submitted evidence shows that on 5 March 2025 the complainants participated in a protest of employees of the Public Enterprise “Pošta Srbije” in front of the Main Post Office in Takovska Street, at which AA read the workers’ demands addressed to the Supervisory Board. On 6 March 2025, the Acting Director General of the Public Enterprise “Pošta Srbije” commented on the workers’ protest in a television program and subsequently filed a complaint with the Commissioner for the Protection of Equality against AA as the organizer of the public gathering at which, as stated in the complaint, the rights of minors had allegedly been jeopardized. Thereafter, on 7 March 2025, the complainants supported the students’ call for a general strike, following which they received offers to conclude annexes to their employment contracts that would have assigned them a new, very distant place of work and transferred them to another work unit, while AA was also to be transferred to a lower-ranking position. They did not sign these annexes but instead submitted written responses to the employer. Subsequently, the employment of the complainants with the Post was terminated: BB on 8 May 2025 by dismissal by the employer, and AA on 4 May 2025 at her own request. Applying the provisions of Article 45 of the Law on the Prohibition of Discrimination, it was established in the proceedings that the Public Enterprise “Pošta Srbije” failed to demonstrate that the reasons for transferring the complainants to another post office were not related to their actual or presumed personal characteristics, or that there were justified and objective reasons for their transfer. Accordingly, the Commissioner issued the opinion that the Public Enterprise “Pošta Srbije” had violated the provisions of Article 6 in conjunction with Article 25(1) of the Law on the Prohibition of Discrimination. The Public Enterprise “Pošta Srbije” was recommended to eliminate the consequences of the discriminatory conduct and to issue a written apology to the complainants within 15 days from the receipt of the opinion with recommendations, as well as to ensure in the future that, in the course of its regular work and activities, it does not violate the legal provisions prohibiting discrimination.

COMMISSIONER FOR THE PROTECTION OF EQUALITY

Brankica Janković