Special protection of women before and after childbirth is regulated by the Constitution as the highest legal act of the Republic of Serbia, as well as by the Labor Law, which as a special law regulates the rights and obligations of employers and employees. In this sense, the Labor Law provides special protection against dismissal for this category of employees.

Namely, the Constitution of the Republic of Serbia defines that mothers are provided with special support and protection before and after childbirth, while the Labor Law as a general rule stipulates that an employer cannot terminate an employment agreement to an employee during pregnancy, maternity leave, leave due to child care and leave due to special child care.

Having in mind that it is relatively common in practice for employees to be employed on a fixed-term basis, the legislator gave special importance to protection against dismissal of employed women during pregnancy and after childbirth, and whose employment agreement is of limited duration.

Additionally, since in certain situations the father of the child also has the right to use maternity leave, leave due to child care and leave due to special child care, in that case he also enjoys protection against dismissal.

If an employee during pregnancy, maternity leave, leave due to child care and leave due to special child care, or the father of a child who uses the said leave instead of the mother, expires employment based on a fixed-term employment agreement, the agreement is extended until expiration use of the right to leave. This rule was introduced only by the amendments to the Labor Law from 2013, until when the employment of an employee who uses leave was terminated on the day of the expiration of the term on which it is agreed.

Therefore, protection against termination of the employment agreement of the employee during pregnancy and leave after childbirth is absolute. On the one hand, it applies to all cases of termination of employment initiated by the employer, regardless of whether the reason for termination of the employment agreement relates to the employee’s ability to work or conduct, breach of duty, non-compliance with work discipline, or refers to the implementation of technological, economic or organizational changes in the employer (redundancy). On the other hand, protection against termination of employment also applies in the event that during pregnancy, ie the use of leave from work after childbirth, the term on which the employee’s agreement is based expires.

What if the employer terminates the employment agreement?

The Labor Law stipulates that the decision on termination of the employment agreement is null and void (without legal effect) if on the day of the decision on termination of the employment agreement the employer was aware of the circumstances on the basis of which the employee has the right to use the leave (for example pregnancy) or if the employee informs the employer about the existence of these circumstances within 30 days from the day of termination of employment and submits the appropriate certificate from an authorized doctor or other competent authority.

Therefore, in order to determine the nullity of the decision, the moment of the employer’s knowledge of the existence of circumstances that would lead to protection against dismissal is important. Hence, if the employer did not know about the existence of the employee’s pregnancy at the time of the decision on dismissal, nor he was informed about it within 30 days from the day of termination of employment, the decision to terminate the employment contract is not illegal. This is confirmed by case law as well as numerous opinions of the competent ministry.

In case the employer makes a decision on termination of employment despite the existence of circumstances due to which the employee enjoys protection from dismissal, the employee has the right to apply to the labor inspection to take measures to eliminate illegality, as well as to initiate a dispute before the competent court in order to determine the nullity of the decision on the basis of which the employee’s agreement was terminated.

Having in mind all the abovementioned, it can be concluded that the legislator recognized the importance of protection against dismissal of women during pregnancy and after childbirth, and adequately regulated this issue, especially in the part related to employees who have established employment for a certain period of time.

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.

Source: Otvorena vrata pravosuđa