Confusion over the deadline for litigating certain dismissal decisions continues after a request for clarification made to the Federal Ministry of Labor and Social Policy was met with a mere restatement of the ambiguous law.
In 2018, amendments to the Federation of Bosnia and Herzegovina Labor Law (FBiH Labor Law) were adopted, and one of the changes related to the procedure for contesting a unilateral termination of employment. Prior to the change, an employee had an obligation to contact his or her employer and seek a solution within a period of 30 days from the date of the delivery of the decision that infringed his or her rights before commencing court action. If no consensual solution could be found, the employee then had 90 days to file a lawsuit. This obligation referred to all cases of infringement of employee rights, except when the employee sought monetary claims, for which the prescribed limitation period is three years.
With the amendments to the FBiH Labor Law, this exception regarding monetary claims was replaced with reference to cases dealing with termination of employment contracts.
This change led to confusion over the deadline for filing a lawsuit. Specifically, the question that arises is the following: if an employee is not obligated to first seek a solution with his or her employer before referring the case to the court in a case of termination of an employment contract, what is the deadline for filing a lawsuit in such case? These cases are not pure monetary claims for which there is a specified three-year period.
According to Article 114 paragraph 3 of the FBiH Labor Law, the 90-day deadline begins after a solution with the employer could not be found, but if the employee is now not obligated to first seek a solution of the case by addressing the problem with his or her employer, then when does the 90-day deadline begin?
In search of a solution for these ambiguities, Karanovic & Partners contacted the Federal Ministry of Labor and Social Policy seeking an official opinion on the questionable deadline. Unfortunately, the opinion issued by the Ministry consisted only of a citation of the relevant legal provision, more precisely Article 114, without giving a clear response to the question.
It is hoped that case law will eventually provide clarity regarding when courts are required to address the issue. Until then, it is prudent to assume that the 90-day deadline starts upon receiving the decision of the employer. Employers may want to argue the deadline has been missed if an employee does not commence proceedings within this period.
Written by Nihad Sijerčić and Alen Gračić in cooperation with Karanovic & Partners Limited and Roger James of Ogletree Deakins
© 2019 Karanovic & Partners and Ogletree, Deakins, Nash, Smoak & Stewart, P.C.