Labor Law of the Republic of Serbia (“Official Gazette of the RS”, number 24/05, 61/05, 54/09, 32/13, 75/14, 13/17 – decision of the CC, 113/17 and 95/18 – authentic interpretation) stipulates that an employee cannot be terminated from an employment contract unless there is one of the reasons prescribed by Article 179 of the Labor Law, namely:
- if there is a justified reason related to the employee’s ability to work and behavior (e.g. does not achieve work results, does not have the necessary knowledge),
- if the employee violates some work obligations through his own fault (e.g. abuses his position or exceeds his authority),
- if the employee does not respect work discipline (e.g. unjustifiably refuses to perform tasks or execute the employer’s orders),
- as well as if there is a justified reason related to the needs of the employer (technological surplus).
The above implies that every employee, without exception, regardless of years of work, place of employment etc., is protected from illegal dismissal by the employer, and in those cases has the right to turn to the competent court for protection, i.e. for return to work and payment of damages, as well as payments of the corresponding contributions for the period in which he did not work.
However, does the stated protection of employees against illegal dismissal really apply to all employees, regardless of the place of employment?
The question arises, what kind of protection is available for an employee who was illegally dismissed from the US Embassy in the territory of the Republic of Serbia, if the court refuses to act on his claim and declares that it has no jurisdiction in such matter?
The above-mentioned situation is already known to some extent in practice, and there is already an established pattern of behavior of the Embassy of the United States of America, where it does not accept the jurisdiction of the Republic of Serbia in the disputes in question, so when the court declares that it has no jurisdiction, the employee as a prosecutor finds himself in a dead end in which he cannot exercise his legally guaranteed rights.
A simple question arises: If an employee works at the Embassy of the United States of America on the territory of Serbia, and has concluded an employment contract in accordance with the provisions of the Labor Law of the Republic of Serbia and the decision on dismissal has been handed to him in accordance with the Laws of the Republic of Serbia, is it not only logical that the employee seeks protection from illegal dismissal before the courts of the Republic of Serbia?
In contrast, the already mentioned established principle by which the US Embassy acts is to refuse any jurisdiction of Serbian courts, most often by referring to the Convention on the Service Abroad of Judicial and Extrajudicial Acts in Civil and Commercial Matters and its rules on service, which imply that a summon to a foreign state must be sent through the Central Authority for the United States of America, and not to the Embassy itself.
In this way, a distinction is clearly made between the Embassy of the United States of America and the government of the United States of America, despite the fact that, as they themselves point out, the Embassy of the United States of America does not have a separate subjectivity from the subjectivity of the government of the United States of America. Thus, the refusal of the jurisdiction of the Serbian courts by the Embassy of the United States of America, is accepted by the Serbian courts without question, and the plaintiff is at the same time prevented from protecting his legally guaranteed right.
The mentioned categorical refusal of the US Embassy to accept the jurisdiction of the court of another country in these disputes, and the lethargy and lack of interest of the Serbian judiciary to literally apply the laws and possibly oppose the embassy of one country, is something that opens up space for great legal uncertainty for employees of embassies on the territory of the Republic of Serbia and the citizens of the Republic of Serbia in general and opposes first of all the Constitution of the Republic of Serbia, but also all international acts that protect basic human rights.