Is your employer allowed to order you to work on the day of your Saint Patron/ Krsna Slava?

According to Article 43 of the Constitution of the Republic of Serbia (“Official Gazette of the RS”, No. 98/2006 – hereinafter: the Constitution), freedom of thought, conscience, belief and religion is guaranteed, as well as the right to remain in one’s belief or religion. According to the second paragraph of the same article, no one is obliged to declare their religious and other beliefs.

The fact is, nevertheless, that your employer,  in order to be able to organize the smooth running of the work process in your absence, needs to know in a timely manner  on which day you will be absent from work.

We shall draw your attention to the fact that absence from work on the day of Saint Patron/ Krsna Slava, although similar in essence and effect, does not have the character of paid leave guaranteed to employees by the Labor Law, but it is a religious holiday on which the employee has the right not to appear on  work according to the Law on State and other holidays in the Republic of Serbia (“Official Gazette of the RS”, No. 43/2001, 101/2007 and 92/2011 – hereinafter: the Law)

Article 4 of this Law stipulates that employee has the right not to work on the following religious holidays:

1) Orthodox – on the first day of Saint Patron/ Krsna Slava;

2) Catholics and members of other Christian religious communities – on the first day of Christmas and on Easter holidays starting from Good Friday until the second day of Easter, according to their calendar;

3) members of the Islamic community – on the first day of Eid al-Fitr and the first day of Eid al-Adha;

4) members of the Jewish community – on the first day of Yom Kippur.

There are also holidays which, as non-working days for all citizens of the Republic of Serbia, are provided by the same Law, regardless of their religion:

1. a) public holidays – Sretenje, New Year’s Day, Labor Day and Armistice Day in the First World War and
2. b) religious holidays – the first day of Orthodox Christmas (January 7) and Easter holidays starting from Good Friday until the second day of Easter.

Unlike members of the Catholic, Islamic or Jewish community who celebrate their religious holidays on the same date, the fact is that members of the Orthodox community celebrate their Saint Patron/ Krsna Slava on different days, and that some Slava are widespread among employees (example of the celebration of Slava St. Nicholas).

It often happens that the employer, due to the need to maintain the process and work organization, is not able to meet the needs of each employee and tolerate them being absent from work in a same day.

Is an employer authorized to order you to work and be present at work on the day of your Saint Patron /Krsna Slava and under what conditions?

This right of the employer undoubtedly exists and is explicitly defined by the provisions of Articles 55 and 56 of the Labor Law which – the schedule of working hours within the working week is determined by the employer. This right of the employer is additionally defined if work is performed in shifts, during night or other situations when the nature of work and organization of work requires, with the obligation to inform employees about the schedule and working hours alterations at least seven days prior. In addition, we emphasize that there are no penalties provided to sanction an employer if he orders employee to work on a public or religious holiday, from which we conclude that he has the right to do so.

The question is often asked whether the employer has the obligation to bring and deliver to the employee a written ruling approving his absence from work on the day of the Slava.

In accordance with Labor Law, employer is obligated to give a written decision to the employee whenever he  decides on employees’ rights and obligations arising from the fact of employment. Bearing in mind that employees right to be absent from work on Saint Patrons day is granted by Law on State and Other Holidays in the Republic of Serbia and not from the Labor Law, accentuated with a visible tendency of modern legislation to dispose of employee files and records of the employer in the field of work (for example, making and submitting a decision on annual leave in electronic form and to the employee’s mail), we believe that making a written decision in this case is not the  obligation.

However, what should an employer do if, due to the process and organization of work, if his employee is required to work on the day of his Slava?

As in this case it is a religious holiday which is non-working day for the employee in accordance to Law on State and Other Holidays, we believe that there is a place to apply the provision relating to the employee’s right to increased wages for work on holidays, in terms Article 108, Paragraph 1 of the Labor Law. We remind you that on a holiday that is a non-working day, the employee is guaranteed the right to an increased salary in the amount of at least 110% of the base.

In this case, whether the employee addressed his employer with a written request, or orally requested not to work on the day of his baptism, the employer is obliged to apply Article 193 of the Labor Law, and by his written decision oblige the employee to works on the day of his baptism, and in the explanation of this decision it is necessary to state the reasons that require him to make such a decision and inform the employee about the right to challenge such a decision before the competent court.

If the employee is granted leave from work on the Saint Patrons day/ Krsna Slava, he is entitled to salary compensation in the amount of his average salary in the previous three months, in accordance with the general act and employment contract, pursuant to Article 114, paragraph 1 of the Labor Law.

For these reasons, the suggestion is for employers to, whenever possible, apply Article 4 of the Law on State and Other Holidays in the Republic of Serbia, and organize the work process so as to enable their employees who celebrate their Saint Patrons day to be absent from work.