No. 07-00-273/2025-02  Date: 10 June 2025

OPINION

The opinion was issued in the procedure following the complaint submitted by AA from …, against the employer, the business company BB (hereinafter: the employer), which he filed considering that the employer’s actions constituted discrimination based on disability. In the complaint and its supplement, it was stated, among other things, that the complainant is employed by the employer in the position – production worker, and that the tasks described for this position are mainly performed in a standing position; that “sitting” jobs exist in the “silo filling team”; that these positions are “occupied by both disabled and non-disabled workers”; that the complainant has the status of a person with a disability, determined by the competent authority; that during the assessment of his work ability, it was determined that he cannot perform tasks in a standing position; that despite the duly delivered decision of the competent authority regarding the assessment of work ability, he remained assigned to the same job position, performing duties that he is not allowed to do – in a standing position; that he repeatedly, both orally and in writing, requested a job transfer from the employer; that he also contacted the employer’s human resources department, always receiving the verbal response “that such a job position does not exist”; that he contacted the labor inspection in this regard; and that he received warnings from the employer about the existence of grounds for termination of the employment contract for not working on the public holiday, which is a non-working day; and that the employer issued the complainant a new warning regarding the existence of a justified reason for termination of the employment contract on 27 April 2025. In the employer’s director’s response, it was stated, among other things, that the complainant fell at the workplace during work on 26 August 2023 and complained of pain in his left knee, which he had previously had problems with; that the said incident was reported as a work injury; that the complainant was absent from work continuously from 26 August 2023 until 17 February 2024 due to the work injury; that from 19 February 2024 to 30 April 2025 he mostly did not work due to temporary work incapacity, use of annual leave, and use of days off as part of working time redistribution; that in March and April 2025 he was unjustifiably absent from work for certain periods; that the employer made a decision on 11 February 2025 about work schedule and working on the public holiday of 11 February 2025, determining that work would be carried out on 17 February 2025, but the complainant did not work on that day and submitted a certificate of temporary incapacity for work only on 25 February 2025, while he had earlier, on 11 March 2025, submitted a sick leave form for the absence from 1 February 2025 to 28 February 2025; and that the complainant has again been absent from work since 5 May 2025, with the employer still not knowing the reason for his absence; that the employer had no opportunity to consider the possible reassignment of the complainant to a different position in accordance with legal procedure, since the employee was absent from work and has, for the most part since August 2023, not worked; and that the employer’s job classification system does not envisage “sitting” job positions in the production sector. Taking into account the undisputed facts established during the proceedings – that the complainant continues to work at the same position which is performed exclusively in a standing position even after the issuance of the Decision of the National Employment Service – Branch Office … of … and despite timely informing the employer about the said decision – the procedure examined whether the employer undertook all necessary actions and measures in accordance with the provisions of Article 101 of the Labor Law after receiving the decision, in order to assign the complainant to an appropriate position, i.e., whether by acting or failing to act in this particular case, the employer placed the complainant in an unjustifiably less favorable position as an employee based on his disability as a personal characteristic. It should be preliminarily pointed out that the complainant, in accordance with the special rule on the burden of proof prescribed in Article 45 of the Law on the Prohibition of Discrimination, made it probable that a discriminatory act by the employer occurred in this case, by submitting the Decision of the National Employment Service – Branch Office … of …, which determined limitations in the form of tasks he can perform, which contradict the duties he is allegedly performing at his job position. In addition, the complainant provided evidence that he informed the employer of the issuance of the said decision and that it was duly delivered to the employer. Therefore, the burden of proof that no discriminatory act occurred in this case lies with the employer. The Commissioner notes that, when requesting a statement, the employer was specifically asked to provide the Commissioner with a risk assessment document for the job position occupied by the complainant, as well as the employer’s Rulebook on Organization and Job Classification. However, aside from stating in the response that “its job classification does not envisage sitting positions in the production sector” and that “it had no opportunity to consider a possible job transfer, since the employee was absent and not attending work,” the employer did not submit evidence to support the claim that there are no suitable job positions available for the complainant in accordance with his remaining work capacity. Besides failing to submit this evidence, the employer stated that suitable jobs do not exist in the production sector, from which it can be concluded that the employer did not even consider reassignment to other positions outside the production sector, if there exists a job position that corresponds to the complainant’s professional qualifications and the limitations stated in the NES Decision. The fact that the complainant was absent from work for a prolonged period in no way prevented the employer from taking measures in accordance with the law to reassign the complainant to another suitable position. The Commissioner issued the opinion that by failing to reassign employee AA in accordance with his health condition and disability, i.e., in accordance with his work ability, the company BB violated the provisions of Article 6, in connection with Article 16 paragraph 1 of the Law on the Prohibition of Discrimination. A recommendation was issued to the employer to eliminate the consequences of the discriminatory conduct toward the complainant regarding the assignment to a job position in accordance with his work capacity.

COMMISSIONER FOR THE PROTECTION OF EQUALITY
Brankica Janković