07-00-663/2021-02 date: 22.3.2022.

OPINION

The opinion was issued in the procedure regarding the complaint filed by AA from … against the Company BB (hereinafter: the employer), due to discrimination on the grounds of health condition. The complaint stated, inter alia, that the complainant was employed by the employer and that he had been “punished” by failing to receive bonuses, which were given to “even those employees with disciplinary offenses”, simply because he had been on sick leave for 15 days due to pneumonia. The employer’s statement on the allegations from the complaint, among other things, states that the director of the employer made a decision on the payment of bonuses for employees, which defines the criteria that employees must meet to be entitled to the bonus, “namely, that they were present at work in the interval from June 1,2021 until August 20,2021, i.e. that they were not absent from work in any month of the specified period, longer than four working days”, and that employees who were not present at work in the specified period, and among whom was AA, were unable to give their contribution to the business success of the employer. During the procedure, the Commissioner inspected the employer’s Decision, which prescribes in which cases the employee is entitled to the payment of a bonus. The decision stipulates that an employee is entitled to a bonus if they “were present at work in the interval from June 1, 2021 until August 20, 2021, i.e. that they were not absent from work in any month of the specified period for more than 4 (four) working days (June, July, August), not taking into account absence on the basis of annual leave, paid leave under Articles 35-37 of the Collective Agreement, inability to work caused solely by the pandemic (self-isolation) and/or infection with the COVID-19 virus or an injury at work”. It is indisputable that the employer, in accordance with the provisions of the Labor Law, has the right to determine the manner and criteria for the payment of wages based on the contribution to the business success of the employer by a general act, i.e. a decision of the director. However, the analysis determined that only employees who were absent from work due to illness, as was the complainant, were excluded from the right to the bonus, while other employees who were absent during the same period for other reasons such as annual leave, paid leave, etc. were not excluded from the bonus. Thus, by the analysis of the set criteria it can be determined that the contribution to business success was not assessed on the basis of attendance at work. In this regard, the measure of excluding the employee from the payment of wages based on the contribution to the business success of the employer only because they were absent from work due to illness for more than four days in the observed period, that is, due to a certain health condition, is not appropriate and necessary. In this way, the complainant was placed in an unjustifiably disadvantaged position only because of his health condition. The Commissioner gave the opinion that the employer, by denying the complainant the right to the payment of bonus for the period from June 1, 2021, until August 20,2021, only because of absence from work due to illness, i.e. due to his health condition as a personal property, violated the provisions of Article 8 and Article 27, paragraph 1 of the Law on Prohibition of Discrimination. The employer was recommended to eliminate the consequences of discriminatory treatment of the complainant, as well as to take into account anti-discrimination regulations in the future when determining the criteria, and not to violate the regulations on prohibition of discrimination by its actions.

COMMISSIONER FOR THE PROTECTION OF EQUALITY
Brankica Janković