In its judgment No. Rev2 4375/22 of July 26, 2023, the Supreme Court of Cassation took the position that, regarding the right to file a lawsuit for damages in the form of lost salaries due to the consequences of the unlawful termination of the deceased employee's employment, the legal successors of the deceased employee are entitled to file the lawsuit, as the inheritance opens upon death, and the property, by operation of law, passes to the heirs.
What is Provided by the Regulations?
The Constitution of the Republic of Serbia guarantees the right to work and, in this regard, the right to fair compensation for work and legal protection in the case of termination of employment. In this sense, the right to a salary is a personal right and cannot be waived by anyone.
On the other hand, the Constitution of the Republic of Serbia guarantees the peaceful tenure of property and other property rights acquired under the law. It also provides that property rights can only be revoked or restricted in the public interest established by law, with compensation that cannot be lower than the market value.
This is also stipulated in Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms, which the Republic of Serbia has signed and ratified.
Furthermore, even a legitimate expectation of acquiring property is considered property and is also protected by the guarantees of the Protocol. This position has been confirmed by numerous judgments of the European Court of Human Rights, which is competent in the application of the Convention and its Protocols.
The Labor Law of the Republic of Serbia provides that as a consequence of the unlawful termination of employment, the employee has the right to, among other things, request compensation for damages from the employer, which is determined in the amount of the lost salary, including the corresponding taxes and contributions in accordance with the law. However, this does not include compensation for meals during work, subsidy for the use of annual leave, bonuses, awards and other earnings based on contribution to business success of the employer.
Finally, the Inheritance Law of the Republic of Serbia stipulates that an individual's death opens their inheritance, and the estate automatically passes by operation of law to the deceased’s heirs at the moment of their death.
What Were the Circumstances of the Case?
The employee filed a lawsuit to annul the decision to terminate her employment as unlawful, and she succeeded in that lawsuit. With the finality of the court decision in that case, the employee obtained the possibility to request compensation for damages from the employer as a consequence of the unlawful termination of employment, in the amount determined by law. However, the employee passed away before initiating that process, and her heirs initiated the process, also succeeding in the lawsuit.
On What Grounds Did the Heirs Achieve a Right Based on the Work That Belonged to the Deceased Employee?
The right to a salary is one of the fundamental rights arising from the employment relationship, and in this sense, it is a personal right.
However, the subject of the heirs' claim, as plaintiffs in this specific case, was not the realization of the deceased's personal right but her right to property.
In this sense, the court assessed that the now-deceased employee, due to the consequences of the unlawful termination of her employment, was in a state of legitimate expectation of acquiring property in the form of compensation for lost salaries. This compensation is therefore considered her property, which is protected in accordance with the aforementioned material law rules, and whose realization was requested by the plaintiffs, as her heirs, due to her death. As mentioned earlier, inheritance opens at the moment of death, and property automatically passes to the heirs by operation of law.
This position ensures fairness in legal relations and property before the employee's death and provides legal security to the employee’s heirs, thus protecting their property interests.
Borinka Dobrnjac
Senior Associate