We continue to deal with court decisions that creatively interpret the provisions of the Labor Law concerning the termination of employment contracts, thereby introducing significant legal uncertainty in practice.
While the Labor Law stipulates that an employer can terminate an employment contract if the employee breaches their work obligations and discipline, of which coming to work under the influence of alcohol or other intoxicants is particularly noteworthy, in practice employers have difficulties dismissing employees who come to work in a drunken state or are otherwise unaccountable.
- Alcoholism
Article 179 paragraph 2 item 4 of the Labor Law expressly stipulates that the employer may dismiss an employee who violates work discipline by coming to work under the influence of alcohol or other intoxicants or by consuming them during working hours.
From this, it is clear that employment could end if the employer determined, based on alcohol testing, that the employee is under the influence of alcohol or consumes alcohol during work hours.
However, the Supreme Court took the position that a person suffering from alcoholism has no voluntary influence over their actions meaning that they cannot influence their alcohol consumption. According to the court, coming to work in a drunken state or consuming alcohol during working hours is not a voluntary act of the employee, but a consequence of their illness – alcoholism. Since drunkenness in such a case is an involuntary act, the employee is not responsible for violation of work discipline if they come to work in a drunken state, meaning that there are no grounds for dismissal of such an employee.
(Judgement of the Supreme Court of Cassation, Rev2 3051/2020 of December 16, 2021)
The court’s opinion can probably by analogy be applied to employees who come to work under the influence of narcotics or who consume narcotics while at work, assuming they have been diagnosed with drug addiction (we found no matching case law concerning narcotics, but the principle should be the same as for alcoholism).
- Unaccountability
Just as alcoholism or drug addiction results in the unaccountability of employees and thus their ability to control and understand the significance of their actions, any other mental or psychological condition of employees that results in a state of unaccountability may also affect their employment status.
According to a variety of decisions of appellate courts and the Supreme Court, employees are not responsible if a breach of work duties or discipline was caused due to mental illness, stress, irritability, or anxiety. For example, an employer cannot dismiss an employee who does not show up for work because they imagine (due to illness) that they are on vacation, since the employee has not been absent from work on their own free will, but for reasons beyond their control. The same applies, for example, to an employee who leaves work every day due to a psychological state, arrives late for work, takes breaks outside of the schedule, or disturbs other employees.
(Judgement of the Supreme Court of Cassation, Rev2 438/2017 of March 2, 2017, and Decision of the Court of Appeal in Belgrade, Gž1 2144/1019 of October 4, 2019)
Bearing in mind the above case law, employers are further deprived of the ability to predictably decide on the employment status of employees, even in situations where it is quite clear that there is a violation of work obligations or discipline, and especially when employee behavior harms other employees or creates an unpleasant work environment. With recent changes to the law, the medical reports on the temporary incapacity for work no longer include the code of the illness the employee is suffering from, so employers are deprived of this information and whether such illness may affect employees to involuntarily violate work obligations and discipline. On the other hand, it regularly happens that doctors do not give sick leave to employees who have been diagnosed with an illness which can result in an involuntary breach of work obligations and discipline. This leads to other problems, as in these cases, the employer cannot voluntarily remove such employees from the workplace and prevent them from harming the work environment, even if their acts are involuntary.
One gets the impression that the courts making such decisions did not consider the overall picture and the specific problems such decisions can cause for employers and other employees. Therefore, it is necessary in the coming period to change the practice by pointing out in court proceedings the practical untenability of the positions taken by the courts or to review some legal solutions to protect the interests of all parties and, what is also important, to create legal certainty.
This text is written for informational purposes only and does not constitute legal advice. We are at your disposal for any additional information.
By Milorad Glavan, Partner, DNVG Attorneys
