According to the provisions of the Labor Law (“Law”), in case of (culpable) breach of work obligations or non-compliance with work discipline by an employee, before terminating the employment contract or imposing another measure prescribed by Law, the employer is obliged to warn the employee in writing about the existence of grounds for termination of the employment contract and to provide them with a deadline (of at least eight days from the date of receipt of the warning) to respond to the allegations included therein.
Content and delivery of the warning
In the warning, the employer must specify the basis for termination, facts and evidence indicating that conditions for termination have been met, and the deadline for responding to the warning (at least eight days from the date of receipt of the warning).
The Law further stipulates that the warning should be delivered to the employee in the manner prescribed for delivering decision on termination of employment contract, which includes written form and a notice of legal remedy, as well as personal delivery to the employee – at the employer’s premises or at the employee’s address of residence or whereabouts.
In this regard, Article 192 of the Law stipulates that the rights, obligations, and responsibilities arising from the employment relationship are decided by:
- in a legal entity – the competent body at the employer, or a person determined by law or the employer’s general act, or a person authorized by them (which authorization is issued in writing);
- in an employer who is not a legal entity – an entrepreneur or a person authorized by them.
In accordance with the above, and in line with the Opinion of the Ministry of Labor, Employment, and Social Policy no. 011-00-569/2012-02 of September 25, 2012 (“Opinion”), employment contracts, decisions, warnings, and other enactments determining the rights, obligations, and responsibilities of employees must be signed by the director, entrepreneur, or an employee authorized for this purpose.
Case law
However, according to the Decision of the Supreme Court of Cassation Rev2 2834/2022 of February 2, 2023 (“Decision”), while the decision on termination of the employment contract is a decision on the rights, obligations, and responsibilities of the employee and must therefore be made in accordance with Article 192 of the Law, the employer’s warning does not constitute a decision to which this provision would apply.
According to the reasoning of the Decision, the warning is not a decision because it does not decide on the right, obligation, and/or responsibility of the employee; rather, it is an action that must be taken in the procedure before the termination of the employment relationship, whereby the employee is warned that there are grounds for termination, i.e., the reasons are presented, the facts on which they are based, the evidence confirming them, and the deadline for the employee to respond, thus providing the employee with the right to defense. Furthermore, the Decision states that the warning is by its nature a document that can be signed not only by persons from Article 192 of the Law but also by a person authorized to act on behalf and for the account of the employer. This authorization can be specific or general, and proof of authorization in any case is an excerpt from the competent register of the Business Registers Agency.
Conclusion
The Decision, therefore, takes a position contrary to that expressed in the Opinion, raising questions about its foundation in the provisions of the Law.
Namely, although the warning to the employee does not actually issue a termination or another (disciplinary) measure and therefore does not constitute a decision in the strictest sense of the word, i.e., an act with final effect, issuing a warning in a broader sense involves deciding on the rights, obligations, and responsibilities arising from the employment relationship within the meaning of Article 192 of the Law. In other words, the warning in its essence represents a decision to initiate what is called a disciplinary procedure at the employer level, which may result in the issuance of a decision on termination of the employment contract or a decision imposing another disciplinary measure prescribed by the Law.
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By Lara Maksimovic and Borinka Dobrnjac, Senior Associates, PR Legal
