The Constitution of the Republic of Serbia guarantees the freedom of work, which, in a broader sense, includes the freedom to work or not work, as well as the freedom to choose an employer.

In this regard, employees are often unaware of their obligation, after giving notice of termination of an employment contract, to remain in the employment relationship for an additional 15-30 days and fulfill their work duties during that period.

The Labor Law stipulates that:

• An employee has the right to terminate an employment contract with the employer.
• The employee must submit a written notice of termination to the employer at least 15 days before the day specified by the employee as the termination date.
• The notice period may be extended beyond 15 days, up to a maximum of 30 days, by a collective agreement or employment contract.

Therefore, an employee can terminate the employment contract at any time, but in such a case, the employee is obliged to remain in employment for at least 15 and up to 30 days before the specified termination date.

This period is referred to as the notice period.

Although the employer’s internal regulations or the employment contract may provide more favorable rights for the employee compared to the rights established by the Labor Law (including a notice period shorter than 15 days), this provision is imperative in that it limits the notice period to a maximum of 30 days (Opinion of the Ministry of Labor, Employment, Veterans, and Social Affairs no. 011-00-454/2015-02, dated April 24, 2015).

It is important to understand that the notice period prescribed by the Labor Law is primarily established to protect the interests of the employer.

This is because, in such a case, the employer is left without an employee who performed the relevant tasks, creating a need for the employer to find a new person to perform these tasks or to reorganize them differently, requiring time.

However, what happens if the employee does not comply with the notice period? What are the consequences of such actions by the employee?

In that case, the employer may incur damages.

This means that, based on the relevant provisions of the Labor Law and the Law on Obligations, the employer could initiate court proceeding against the employee, proving that the employee did not comply with the notice period, resulting in damage to the employer and specifying the amount of the damage. If the decision is in favor of the employer, the employee would be legally obliged to compensate the employer for the determined amount of damage. If the employee does not comply with the court decision, the employer would have the option of enforcing its claim through another, i.e., enforcement procedure.

Therefore, without a court decision, the employer cannot seek compensation for damages from the employee, at least not compulsorily.

Any agreement on a lump-sum compensation or contractual penalty that the employee would be obliged to pay in case of non-compliance with the notice period is not allowed by judicial practice.

Namely, the Supreme Court of the Republic of Serbia has taken the position that such obligations in the field of debtor-creditor relations do not belong in an employment contract. Since this is a labor law relationship, the provisions of the law regulating this relationship apply, namely the Labor Law (Decision of the Supreme Cassation Court no. Rev2 2350/19, dated March 11, 2020).

Whether the damage to the employer has actually occurred and whether it can be proven is, of course, the burden of proof on the employer, and these circumstances depend on the specific case.

Although the employment contract represents a specific status contract concluded by parties that do not have equal bargaining power, it cannot be overlooked that it is fundamentally an institute of obligations law. Anything not explicitly regulated or prohibited by the Labor Law, as a lex specialis, should be applied to the Law on Obligations, as a lex generalis. This would also mean the valid contracting of penalties for the violation of the specific non-monetary obligation of the employee, against which the quoted position of the Supreme Cassation Court can be argued.

Finally, it should be noted that respecting the notice period represents adherence to the principles and rules of business ethics.

This article is to be considered as exclusively informative, with no intention to provide legal advice. If you should need additional information, please contact us directly.