OPINION

The opinion was issued regarding the complaint of AA against the company B. B. and director V. V, as the responsible person, due to discrimination based on gender. The complaint stated that A. A. had a fixed-term employment contract with the company and that the company director refused to extend her employment contract after learning that she was pregnant. In the statement of the company, it was stated that the employment of A. A. was terminated by force of law upon the expiration of the period for which it was contracted and not by a termination of the employment contract. During the proceedings, it was established that the Labor Inspectorate gave an instruction to the company to extend the employment relationship of A. A. for a certain period until the expiration of the right to leave of absence, with the submission of the application for mandatory social insurance, as well as that the company acted according to the instruction of the Labor Inspectorate. The provisions of Article 187 of the Labor Law prescribe special protection against the termination of employment contracts. During pregnancy, maternity leave, leave from work for childcare, and leave from work for special childcare, the employer cannot cancel the employee’s employment contract. The period for which the contract established a fixed-term employment relationship is extended until the right to leave of absence expires. The decision on the termination of the employment contract is null and void if on the day of the decision on the termination of the employment contract, the employer was aware of the existence of the circumstances mentioned above, or if the employee, within 30 days from the date of termination of the employment, informs the employer of the existence of these circumstances and submits a corresponding certificate from an authorized doctor or other competent authority. The Commissioner first notes that it is indisputable that unequal treatment due to pregnancy represents unequal treatment based on gender, as well as that the Constitution and laws of the Republic of Serbia provide for special protection of women in relation with pregnancy and childbirth. Bearing in mind the allegations from the employer’s statement that the contract was concluded for a fixed-term period and that it expired, and that no decision was made on the termination of the employment contract, the Commissioner points out that the provision of Article 187, paragraph 3, of the Labor Law, refers not only to the termination of the employment contract but also to the termination of the employment relationship, including termination based on the expiration of the period for which the contract was concluded. Bearing in mind the anti-discrimination regulations, from which it is indisputable that a woman enjoys special protection during pregnancy and childbirth and that she cannot be put in a worse position only because of pregnancy or absence due to childbirth and childcare, it is indisputable that the complainant’s contract had to be extended. The evidence also undisputedly established that the complainant submitted appropriate proof to the employer, following the deadline prescribed by law, that she was pregnant and that it was necessary that she maintains pregnancy. The Commissioner also states that the employer did not submit evidence during the proceedings that the complainant’s contract was not renewed for other reasons. Based on the Labor Inspectorate’s minutes, the allegations that A. A. deceived the employer indicate that her pregnancy was the main reason for not extending her employment contract and that the employer would not have hired her if he had previously been aware of this fact. Bearing in mind the established factual situation, there is an apparent cause-and-effect relationship between the failure of the company to act and the personal characteristics of the complainant. The complainant exercised her rights from the employment relationship only after the inspection of the Labor Inspectorate. Based on the established factual situation, the Commissioner issued the opinion that, by failing to extend the employment contract with A. A. due to the fact that she was pregnant, the company B. B. violated the provisions of Article 6 and Article 16, in connection with Article 20 of the Law on Prohibition of Discrimination. Given that an employment contract was concluded with the complainant by an instruction of the Labor Inspectorate, the Commissioner gave the company a recommendation not to violate the provisions of anti-discrimination regulations in the future when carrying out its activities.

COMMISSIONER FOR THE PROTECTION OF EQUALITY

Brankica Janković