no. 07-00-710/2019-02 date: 22.2.2021.

OPINION

The opinion was issued in the procedure regarding the complaints of AA, BB, VV and GG, employees of the Company …, filed against the employer, due to discrimination on the grounds of health condition. The complaints state that the jubilee award was not paid in full to the complainants, due to the fact that they were absent from work due to illness for a period longer than 30 working days. It is further stated that such conduct of the employer is a direct consequence of the application of the provisions of Article 47.1.5. of the Collective agreement with the employer. In the complaint of AA and VV, it is additionally stated that they were not paid the stimulation in 2019. In the complaint and supplement to the complaint, AA stated that the stimulation was not paid to him in 2019, although he was not absent from work due to illness that year, but in 2018, while VV stated that the stimulation in 2019 was not paid to him because he was absent from work due to illness for a period longer than 30 working days. Regarding the part of the complaint of AA, which refers to the allegations that he was not paid the stimulation in 2019, although he was not absent from work due to illness, the Commissioner for Protection of Equality suspended the procedure, as AA did not make it probable that the employer did not pay the stimulation due to his health condition or some other personal characteristic. The subject of further proceedings was to determine whether the Company …, by paying a reduced amount of the jubilee award to all complainants, as well as by refusing to pay the stimulation to VV for 2019, violated the provisions of the Law on Prohibition of Discrimination. Since the complaints were filed regarding the same facts and against the same person, the Commissioner for the Protection of Equality merged the proceedings, and in order to establish legally relevant facts and circumstances, requested a statement from the Company …. In the statement of the Company …, among other things, it is stated that the employer paid salaries to a number of employees in November and December 2019 “based on the contribution to the employer’s business success” for 2019, and that the criteria for payment of this salary were: that the person is employed by the employer, and that he/she was not absent from work during the business year due to temporary incapacity for work, in terms of health insurance regulations, for a total period of more than 40 working days, with the exception of sick leave resulting from an injury at work. It was also stated that by paying the salary “based on the contribution of individual employees to business success in 2019”, the employer wanted to reward the work and commitment shown by those employees in that year. Analyzing Article 47.1.5. of the Collective agreement with the employer, on the basis of which the reduced amount of the jubilee award was paid to all complainants, the Commissioner for Protection of Equality determined that by setting an exclusive condition for the payment of the jubilee award in full, i.e., by paying a reduced amount of the jubilee award to all complaints, an unjustified distinction based on the state of health was made, as there is no objective and reasonable justification for that. Further, analyzing the criteria on the basis of which VV was denied the right to “stimulation” in 2019, the Commissioner for the Protection of Equality determined that the prescribed condition “that employees were not absent from work due to temporary incapacity for work, in terms of health insurance regulations, for a period longer than 40 working days”, also unjustifiably puts these employees in an unequal position, i.e., in the specific case of VV, on the basis of a personal characteristic – health condition. Therefore, the Commissioner for the Protection of Equality gave the opinion that the Company …, by paying the reduced amount of the jubilee award to the complainants, as well as by denying the right for stimulation to VV, violated the provisions of Article 8 and Article 27, paragraph 1 of the Law on Prohibition of Discrimination, and it was recommended to the Company … to take all necessary measures to harmonize the provision of Article 47.1.5. of the Collective agreement with the employer and the criteria for granting stimulations with anti-discrimination regulations, as well as to eliminate the consequences of discriminatory treatment.

COMMISSIONER FOR THE PROTECTION OF EQUALITY

Brankica Janković