no. 07-00-00724/2022-02 date: 4.7.2023.

OPINION

The opinion was issued in the proceedings regarding the complaint filed by AA against BB, the owner of the bakery, trade, and catering shop VV, due to discrimination based on health and disability. In the complaint, it was stated that the complainant was employed for an indefinite period by the employer AA, the owner of this shop, from May 31, 2021, as well as that her health deteriorated during her stay at work, which is why she had to take a sick leave for further treatment and hip surgery. She further stated that during her sick leave, the employer invited her to sign a decision declaring her to be redundant, which terminated her employment on December 15, 2022. In the employer’s statement, it was specified that, besides the complainant, another worker was declared redundant, who had no health problems, and that the health condition was not a criterion based on which it was decided to cancel the complainant’s employment contract. It was further stated that there were changes in the business, i.e., a reduction in the volume of work, as well as an increase in business costs, which made it necessary to reduce the number of employees. In the course of the proceedings, it was determined that, based on the evidence submitted with the complaint, the complainant made an act of discrimination probable by submitting evidence that the employer canceled the employment contract during the temporary incapacity for work on December 15, 2022, and that this cancellation occurred immediately after the evaluation of the RFZO-Branch for the Bor district, in which the First-instance medical commission determined, among other things, that it is mandatory to refer the complainant to the competent authority for determining the loss of working capacity according to the regulations on pension and disability insurance, no later than December 5, 2022. In the proceedings, <it was further determined, based on the evidence attached to the statement, that the employee who was also declared redundant did not perform the same type of work as the complainant, that is, she was not assigned to the position of “retail salesperson”. It was also established that according to the employment contracts submitted with a statement, in the period from August, that is, from August 5 to 28, 2022 (at the time when the complainant was prevented from working), the employer employed two employees for an indefinite period with full-time for the performance of the position of “retail salesperson”, i.e., the position to which the complainant was also assigned. The Commissioner considered the allegations from the employer’s statement that in the process of declaring redundant employees, he was guided by other criteria, such as success in performing work, relationship with customers, etc. However, the employer did not prove that at any time he had objections to the complainant’s work or that her attitude towards customers was inadequate, etc. and that by applying such a criterion, he decided that the complainant should be declared redundant. In addition, he did not submit any evidence proving that his turnover decreased or that there were economic, financial, or other changes that forced him to reduce the number of employees by declaring the employee redundant. Pursuant to the law, even in a situation where the employer is not obliged to adopt a Redundancy Program, as in this particular case, the reasons for terminating the employee’s need to work must be objective and justified. Given that the employer employed two full-time employees for an indefinite period immediately before the complainant was declared redundant, it cannot be considered that he reduced the number of employees in the position of “retail salesperson” but actually increased the number of employees in this workplace. Based on the established facts and circumstances, it can be concluded that the complainant was not declared redundant due to real organizational changes at the employer made to reduce business costs and rationalize work, as specified in the statement, but rather because she was temporarily prevented from working for a longer period due to her health condition. According to the conducted proceedings, applying the rules on shifting the burden of proof, the Commissioner came to the opinion that the employer violated the provisions of Art. 6, 16, and 27, paragraph 1 of the Law on Prohibition of Discrimination, and therefore recommended BB to remove the consequences of discriminatory treatment towards AA, by calling the complainant and, if she agrees, offering her a job again in this independent craft shop. In addition, it was recommended that in the future he should take care not to violate the legal regulations on the prohibition of discrimination within his regular jobs and activities.

COMMISSIONER FOR THE PROTECTION OF EQUALITY

Brankica Janković