CASE OF ANĐELKOVIĆ v. SERBIA
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Just satisfaction dismissed (out of time)
András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen
5. The applicant was born in 1958 and lives in Bor. 6. On 26 October 2004 the applicant filed a civil claim against his employer, company Z, seeking the payment of outstanding holiday pay (regres za korišćenje godišnjeg odmora) due for 2002 and 2003, the difference between the salary he had received and the minimum salary payable under collective agreements in force at the company for the period from October 2001 to May 2004, statutory interest and legal costs. 7. Following a remittal in 2005, on 15 March 2006 the Bor Municipal Court (Opštinski sud) ruled in favour of the applicant. As regards the outstanding holiday pay, the court observed that company Z had not paid the holiday pay due for 2002 and 2003 to any of its employees, as its alleged parent company had been encountering financial difficulties. The court, however, found these facts to be irrelevant to the outcome of the applicant’s claim, as according to the Labour Act and enterprise bargaining agreements in force at the company he had been entitled to holiday pay regardless of the level of his employer’s profits. 8. On 3 September 2007 the Zaječar District Court (Okružni sud) reversed the part of the Municipal Court’s judgment which concerned holiday pay and legal costs, while upholding the remainder. The District Court based its refusal on the finding, disregarding applicable employment law, that company Z had not paid outstanding holiday pay to any of its employees and therefore that “to accept the applicant’s claim would mean that the applicant would be treated more favourably than his colleagues, who had not received payment of outstanding holiday pay from their employer either”. No further recourse against this judgment was available to the applicant. 9. It would appear that between 2004 and 2009 a number of the applicant’s colleagues lodged the same or similar claims to those of the applicant with the Municipal Court. 10. On 28 April and 2 June 2009 the Municipal Court rejected the claims of the applicant’s colleagues for the same reasons as the District Court had in the applicant’s case. However, the Belgrade Court of Appeal, which, following reforms to the judicial system had become the competent appeal court, overturned both judgments on 29 April and 30 June 2010, respectively. In so doing, the appeal court found that the claimants had been entitled to their outstanding holiday pay by applicable domestic law (see paragraphs 10-13 below), finding that the reasons for judgment given by the Municipal Court in their cases were irrelevant and that it had erred in law in rendering the judgments. 11. Article 90 paragraph 3 stipulated that collective bargaining agreements, labour regulations or employment contracts may provide for pay or benefits to employees over and above the rights set out in the Act. 12. Pursuant to clause 30a(1.2), an employee shall be entitled to additional pay, including to holiday pay, which shall amount to a monthly average wage in the relevant industrial sector. Holiday pay shall be paid in full to employees who are entitled to 18 days of annual leave, and shall be reduced proportionally if the employee is entitled to fewer days of annual leave. 13. The text of clause 4(2) of this agreement corresponds to clause 30 of the 2001 Agreement. 14. The text of clause 116(1) of this agreement corresponds to clause 30 of the 2001 Agreement. Additionally, clause 116(4) provides that in case of its financial inability to pay holiday pay as a lump sum, the employer may pay it in several instalments.