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30. novembra, 2020

SERBIA: Employee status and obligations of the employer in case of absence of the employee due to detention

The topic related to holidays seems to be very popular on our web site. This is the type of paid leave to which all employees are entitled. The right provided by the Labor Law. What happens if you have to be away from work without it being a vacation? It’s not a disease. It is not the death of loved ones. The client wrote to us that the employee told them he was in custody. What to do? Read on to find out.

 

Absence from work of the employee in case of detention

In order to distinguish detention from serving a prison sentence, we must first determine the definition of detention. Detention is a measure imposed on the defendant in order to ensure his presence and in order to ensure the unimpeded conduct of criminal proceedings until a final verdict has been rendered. Detention is determined by a decision of the competent court.

An employee who has been remanded in custody shall not have his employment terminated. In accordance with the provision of Article 166 of the Labor Law, the employee is removed from work from the first day of detention, while the detention lasts. In this case, the employer makes a decision on the removal of the employee from work from the first day of detention. In accordance with the Opinion of the Ministry of Labor, Employment and Social Policy, no. 011-00-429 / 2005-02, dated 30 June 2005 year, ordering detention of an employee in the sense of Article 166 of the Law cannot be a reason for termination of the employment contract. Consequently, this cannot be a reason for deregistration from compulsory social insurance.

An employee’s employment is terminated by force of law only if he or she has been sentenced to imprisonment for a term exceeding six months by a final judgment.

 

Earnings during detention

During detention, employees are entitled to salary compensation. It must be in the amount of one quarter of the basic salary. If he supports his family, he is entitled to one third of the basic salary. Compensation paid to an employee during dismissal due to detention has the character of earnings. This means that taxes and contributions are calculated and paid on this fee. This is done in the same way as for payroll. If the salary compensation is below the lowest monthly contribution base, the contributions for compulsory social insurance must be paid at least on the lowest monthly contribution base. The basis for calculating the payroll tax is reduced by the non-taxable amount of tax. In the case of payment of compensation during leave due to detention, there is no limit that the compensation may not be lower than the minimum wage set for that month.

 

Note: The salary compensation during the temporary removal from work due to detention is borne by the body that ordered the detention. This means that the employer pays compensation to the employee during detention. He then refunds it from the authority that ordered the detention.

Further obligations of the employer depend on the outcome of the proceedings due to which the employee is in custody.

Pursuant to Article 169 of the Labor Law, an employee employed during a temporary dismissal is entitled to the difference between the amount of salary compensation (which he received during the temporary dismissal) and the full amount of the basic salary. This is in case:

  1. criminal proceedings against him suspended by a final decision,
  2. or if he is acquitted by a final decision,
  3. or the charge against him was dismissed, but not because of incompetence.

The employer pays this amount of the difference to the employee, but it should be reimbursed by the court that ordered custody.

 

If an employee is sentenced to imprisonment or a security measure, the further procedure depends on whether the time of serving the prison sentence, i.e. the imposed security measures, educational or protective measures, is up to six months or over six months.

 

Absence of an employee from work due to serving a prison sentence of up to six months

If the employee is absent from work due to serving a prison sentence, ie imposed security measures, educational or protective measures, for up to six months, in accordance with Article 79 of the Labor Law, the employee’s rights and obligations acquired at work and on the basis of work are suspended. , except for the rights and obligations for which it is otherwise determined by law, general act, ie employment contract.

In this case, the employer makes a decision on termination of employment. It is necessary for the employer to unsubscribe from the obligatory social insurance on the CROSO portal. The code for basic insurance terminations is 31 – termination of insurance on the basis of employment due to standstill.

 

Employees whose rights and obligations are suspended, in accordance with Article 79 of the Labor Law, have the right to return to work for the employer within 15 days from the day of return from serving a prison sentence, i.e. security measures, educational or protective measures. If he does not return within this period, the employer terminates his employment contract in accordance with the provision of Article 179, paragraph 1, item 3) of the Labor Law.

As in this case the employee’s rights and obligations are suspended, the employee in this period does not exercise the right to salary and the right to salary compensation, nor does the employer have the obligation to pay taxes and contributions.

 

Absence of an employee from work due to serving a prison sentence lasting over six months

Irrespective of the will of the employer and the will of the employee, in accordance with Article 176 of the Labor Law, the employee’s employment is terminated by force of law, if the employee must be absent from work for the duration of imprisonment or security, educational or protective measures longer than six months. The employment of an employee is terminated on the day of entering the prison sentence.

For the termination of employment by force of law due to serving a prison sentence, it is necessary to meet two conditions:

  1. that the employee has been sentenced to imprisonment,
  2. and that he must be absent from work for more than six months in order to serve the prison sentence he was sentenced to.

As can be concluded from the above, if the employee must be absent from work for more than six months due to serving a prison sentence (not detention), or imposed security measures, educational or protective measures, the employee’s employment is terminated by force of law. This is independent of his will and the will of the employer, without the possibility for the employee’s rights and obligations to be suspended. The employer makes a decision on termination of employment, and the person must be deregistered from the obligatory social insurance on the CROSO portal. Code 19 is used as the basic insurance termination code. This is in case the employee is absent from work for more than 6 months due to serving a prison sentence. Code 20 is used if the employee is absent from work for more than 6 months due to the imposed security measure, educational or protective measure.