no. 07-00-312/2023-02 date: 21.9.2023.

OPINION

The opinion was issued in the proceedings regarding the complaint filed by AA from BB against VV, the director of the GG Preschool Institution (from now on, PI GG), due to discrimination based on national affiliation or ethnic origin as a personal characteristic. In the complaint and supplements to the complaint, it is stated, among other things, that the complainant is a member of the Bosniak national minority, that she applied to PI GG on two occasions for employment in the position of cook, that she met all the conditions of the competition like the other candidates for this position, but that on both occasions, i.e., at the competitions from 14.4.2022. and 28.3.2023. candidates from the majority population in the Republic of Serbia were hired. In the statement of the Director of PI GG, among other things, it was stated that in both competitions, from 14.4.2022. and 28.3.2023, after the Competition Committee had drawn up a justified list of candidates for the cook position, the Director decided to accept other candidates for the cook position because they had more experience in the Institution. In the statement, it was further stated that the complainant filed an appeal against the Director’s decision to employ another candidate for the position of cook based on the competition announced on 28.3.2023, and that in the appeal that she submitted to the Management Board of PI GG she referred to the provisions of the Constitution of the Republic of Serbia, the Law on the Protection of the Rights and Freedoms of National Minorities, as well as the Law on Employees in Public Services, and that it should have been emphasized in the competition that a member of a national minority has an advantage in the selection of candidates in case of equal assessment of qualified candidates. She further stated that the appeal was not accepted since the competition in PI GG was announced following the provisions of the Law on the Basics of the Education and Training System, as well as that PI GG does not apply regulations on public services but rather regulations related to education, and that and the members of the Management Board unanimously determined that “there was no employment on a national basis”, as well as that the complainant was not hired for the position of cook, because candidates who had more work experience in PI GG were hired in both competitions. Analyzing the relevant provisions of the Law on Employees in Public Services, and especially taking into account the provisions of Article 2, Paragraph 1 and Article 8, Paragraph 2 of the Law on Preschool Education, it was determined that the activity of preschool education is an activity of direct social interest and that is implemented as a public service, as well as that regulations on public services are applied to the establishment and operation of preschool institutions. Therefore, when announcing a competition, the preschool institution, in addition to the laws in the field of education, should also apply the regulations related to the work of public services, which includes preschool institutions. The Constitution and the Law on Prohibition of Discrimination stipulate that special (affirmative) measures introduced to achieve full equality, protection, and advancement of persons, or groups of persons in an unequal position, are not considered discrimination. The Law on Employees in Public Services stipulates that during employment in public services, to achieve appropriate representation of members of national minorities, priority is given to equally qualified candidates belonging to national minorities. Bearing in mind the above, when an affirmative measure is introduced, it is necessary to indicate in the competition that equally evaluated qualified candidates – members of a certain national minority will have priority when deciding on employment according to the said competition. In that case, all candidates are already informed in the competition itself that if they are members of a certain national minority, they should state this in the competition documentation, on a voluntary basis and following the Constitution and the law. Therefore, it was necessary to enable all candidates to declare their nationality when submitting the competition application so that the Director, when deciding on hiring, in the event of the existence of equally rated qualified candidates for a certain position, would have the data at her disposal whether and which of the equally evaluated qualified candidates is a member of a national minority. In this regard, the Commissioner first notes that the preschool institution did not announce the competition in such a way as to indicate that an affirmative measure will be applied in the candidate selection process. However, even though the competition was not advertised in the above manner, the Commissioner further states that taking into account the evaluations of the Competition Committee, as well as the statements of the Director of PI GG, the Director, when deciding on the selection of candidates in both competitions, for the position of cook, gave priority to other candidates in relation to the complainant, due to longer service in PI GG, which means that, although they were equally qualified, the candidates were not evaluated equally, because priority was given to the candidate with longer work experience. Therefore, even though the competitions mentioned above were not carried out following the provisions of the Law on Employees in Public Services, which is an obvious failure of the organizers of the competition, the Director of PI GG, when deciding on hiring candidates for the position of cook, obviously did not treat candidates as equally evaluated, and even in the case of the application of the provisions of Article 52, paragraph 3 of the Law on Employees in Public Services, the complainant would not receive an advantage since qualified candidates were not equally evaluated, in which case a member of a national minority would have an advantage. Therefore, the Commissioner gave the opinion that the director of PI GG, when deciding on the admission of other candidates to employment for an indefinite period for the position of the cook, following the competitions from 14.4.2022. and 28.3.2023. year did not discriminate against the complainant based on nationality. On the other hand, since the provisions of the Law on Employees in Public Services, which refer to the application of a special (affirmative) measure in the event of an equal assessment of qualified candidates, were not applied during the implementation of the aforementioned competitions, the Commissioner, using the competences from the Law on Prohibition of Discrimination, to send to the authorities and other persons recommendations of measures for achieving equality and protection against discrimination, in accordance with Article 33, paragraph 1, point 9, recommended to the director of PI GG to announce and implement the next competitions for employment in accordance with the provisions of the Law on Employees in Public Services, in order to be able to apply an affirmative measure when the national structure of employees does not correspond to the national structure of the population in the local self-government unit, taking into account the last population census in the Republic of Serbia.

COMMISSIONER FOR THE PROTECTION OF EQUALITY
Brankica Janković