Harassment at work or mobbing is a phenomenon that is present in every type of work environment. Accordingly, it can be concluded that this phenomenon is present both in the private and public sectors. In 2010, the Law on Prohibition of Abuse at Work was passed, which regulates: prohibition of abuse at work and in connection with work; measures to prevent abuse and improve relations at work; the procedure for the protection of persons exposed to abuse at work and in connection with work and other issues of importance for the prevention and protection from abuse at work and in connection with work.
The goal of passing the law is to create a safe and healthy environment for work, and the duty is transferred to the employer to, in order to create the conditions necessary for a healthy and safe working environment, to organize work in a way that prevents the occurrence of abuse at work and in connection with work and to ensure working conditions for employees in which they will not be exposed to abuse at work and in connection with work by the employer, i.e. the responsible person or employees of the employer.
Harassment, in the sense of this law, is any active or passive behavior towards an employee or a group of employees of the employer that is repeated, and which aims at or constitutes a violation of the dignity, reputation, personal and professional integrity, health, position of the employee and that causes fear or creates a hostile, humiliating or offensive environment, worsens the working conditions or causes the employee to isolate himself or induces him to terminate the employment relationship on his own initiative or to cancel the employment contract or other contract.
An abuser is considered to be an employer, entrepreneur or a responsible person at the employer, an employee or a group of employees of the employer, who commits abuse.
The employer is obliged to inform the employee, before starting work, in writing about the prohibition of abuse and the rights, obligations and responsibilities of the employee and the employer in connection with the prohibition of abuse, in accordance with this law. Also, in order to recognize, prevent and prevent abuse, the employer is obliged to implement measures to inform and train employees and their representatives to recognize the causes, forms and consequences of abuse.
The employer is responsible for the damage that the responsible person or employee causes to another employee of the same employer, in accordance with the law. The employer who compensated for the damage caused by the responsible person or employee has the right to demand compensation for the amount of the paid damage from that person or employee
All employees are obliged to refrain from behavior that constitutes abuse and behavior that constitutes abuse of the right to protection from abuse. Every employee has the right to obtain protection from the employer against behavior that constitutes abuse.
An employee who commits abuse, as well as an employee who abuses the right to protection from abuse, is responsible for non-compliance with work discipline, i.e. violation of work duties.
Abuse of the right to protection against abuse, in the sense of this law, is committed by an employee who is aware or should have been aware that there are no well-founded reasons for initiating a procedure for protection against abuse, and initiates or initiates the initiation of that procedure with the aim of obtaining for himself or another material or non-material benefit or to cause damage to another person.
An employee who finds out about behavior that he justifiably believes constitutes abuse has the right to initiate the initiation of a procedure for protection against abuse by notifying the person authorized to submit a request for the initiation of that procedure.
Initiation of proceedings
If the responsible person in a legal entity, i.e. entrepreneur, is not charged with the abuse, the employee who believes that he is exposed to abuse submits a reasoned request to start the procedure for protection against abuse directly to that person.
If the responsible person in a legal entity, is accused of abuse, an employee who believes that he is exposed to abuse can submit a request to initiate the mediation procedure directly to that person.
If the responsible person in a legal entity, i.e. entrepreneur, is accused of abuse, an employee who believes that he is exposed to abuse can, until the expiration of the statute of limitations for initiating the procedure for protection against abuse at the employer established by this law, and without submitting a request to initiate mediation procedure with the employer, start the procedure before the competent court.
The employer is obliged to, upon receipt of the request, within three days, propose mediation to the parties in dispute as a way to resolve the disputed relationship. The employer can accept the request for mediation within three days.
The employee who believes that he is exposed to abuse, the employee who is accused of abuse and the representative of the employer, i.e. the employer and the employee who believes that he is exposed to abuse, mutually designate or choose a person to lead the mediation procedure (mediator), within three days from the day of receipt of the proposal employer.
A person who enjoys the trust of the parties to the dispute may be appointed as a mediator. The mediator is a neutral person who mediates between the parties to the dispute in order to resolve their dispute and is obliged to act independently and impartially.
The mediation procedure is urgent. The mediation process is carried out by the mediator helping the disputing parties to reach an agreement.
The parties can agree on the manner in which the mediation procedure will be carried out. If the parties do not reach an agreement on the manner of carrying out the procedure, the mediator will carry out the mediation procedure in the manner he considers appropriate, taking into account the circumstances of the disputed relationship and the interests of the parties in the dispute, while respecting the principle of urgency. The mediator can conduct joint and separate discussions with the parties to the dispute, as well as, with the consent of one party, convey and present proposals and positions on certain issues to the other.
The mediation procedure is completed within eight working days from the date of determination, that is, the selection of the mediator: 1) by concluding a written agreement between the parties to the dispute; 2) by the mediator’s decision, after consultation with the parties, to suspend the proceedings, because further proceedings are not justified; 3) by the statement of the party in the dispute about giving up further proceedings.
It is considered that the mediation procedure has failed if: the parties to the dispute do not determine, that is, they do not choose a mediator or if the mediation procedure ends in the manner provided by law.
In the event that the mediation procedure was unsuccessful, the employer is obliged to notify the applicant and the employee who believes that he is exposed to abuse if he is not the applicant of that request, that the mediation procedure was unsuccessful, i.e. within three days from the date of expiry of the deadline to the parties to the dispute at the latest and deliver to the employer a decision on suspension of the procedure, i.e. a notification that one of the parties to the dispute has given up further proceedings.
Limitation periods
The right to submit a request for protection against abuse is statute-barred within six months from the day the abuse was committed. The statute of limitations begins to run from the day when the conduct constituting abuse was last committed.
Procedure for determining the responsibility of the employee
The employer is obliged, if the mediation procedure fails, and there is reasonable suspicion that abuse has been committed or the right to protection from abuse has been abused, to initiate a procedure to determine the employee’s responsibility for non-compliance with work discipline, i.e. violation of work duties, in accordance with the law.
The employer may, in addition to the sanctions prescribed by law, impose one of the following measures on an employee who is responsible for non-compliance with work discipline, that is, violation of work duties from paragraph 1 of this article: 1) warning; 2) suspension from work for four to 30 working days without compensation; 3) the measure of permanent transfer to another work environment – to the same or different jobs, i.e. workplace, in accordance with the law.
If an employee, who was given a measure for abuse, commits abuse again within six months, the employer can cancel his employment contract, that is, impose a measure of termination of the employment relationship, in accordance with the law.
If, according to the opinion of the occupational health service, an employee who believes that he is exposed to abuse is in immediate danger to his health or life, or if he is in danger of incurring irreparable damage, the employer is obliged, until the end of the procedure to protect the employee from abuse at the employer, to the employee who is charged for abuse, impose one of the following measures: 1) transfer to another work environment – to the same or different jobs, ie workplace, in accordance with the law; 2) removal from work with compensation of wages, in accordance with the law.
An employee who, in the opinion of the occupational health service, is in immediate danger to his health or life, has the right to refuse to work if the employer does not take measures to prevent abuse. In this case, the employee is obliged to, without delay, inform the employer and the labor inspectorate about the refusal to work. During the refusal of work, the employee has the right to compensation in the amount of the average salary earned in the previous three months.
An employee who refused to work is obliged to return to work after measures are taken by the employer, and at the latest until the end of the procedure for protection against abuse at the employer’s place. An employee who refused to work cannot have his employment contract terminated, that is, the measure of termination of the employment relationship can be imposed.
JUDICIAL PROTECTION
An employee who believes that he is being abused by an employer as a natural person or a responsible person in a legal entity can file a lawsuit against the employer before the competent court.
An employee who is not satisfied with the outcome of the procedure for protection against abuse at the employer has the right to file a lawsuit against the employer due to abuse at work or in connection with work, within 15 days from the date of delivery of the notification, or decision.
In the proceedings before the competent court, an employee who believes that he has been subjected to abuse may request: 1) a determination that he suffered abuse; 2) prohibition of conduct that constitutes abuse, prohibition of further abuse, ie repetition of abuse; 3) execution of actions to remove the consequences of abuse; 4) compensation for material and non-material damage, in accordance with the law; 5) publication of the judgment
If during the procedure the prosecutor made it probable that abuse was committed, the burden of proving that there was no behavior constituting abuse is on the employer.
The procedure in lawsuits for obtaining protection from abuse is urgent. The court will deliver the lawsuit with attachments to the defendant for a response within 15 days from the date of receipt of the lawsuit.
