Alcohol in employee’s blood above 0.00‰ as reason for termination of employment

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On 25 June 2019, the Serbian Constitutional Court rendered a decision rejecting a complaint challenging the constitutionality and legality of the provisions of an employer’s rulebook (the “Rulebook”), which stipulates that the employer does not tolerate any presence of alcohol in the employees’ organism during work.

Specifically, the complainant argued that the provisions of the Rulebook are contrary to Article 179, Paragraph 3. Item 4) of the Labour Law (the “Law”), stating that an employer must, in every concrete case, establish whether the presence of alcohol affects the employee’s work performance.

The cited provision of the Law prescribes that an employer can terminate the employment if the employee violates work duties by coming to work under the influence of alcohol or other illicit substance, as well as for use of alcohol or other illicit substances during work, which affects or may affect the employee’s work performance. The complainant’s main argument was that the Rulebook prescribes stricter conditions for termination of the employment than the Law.

However, the Constitutional Court found that this provision of the Law did not prescribe how much alcohol affects or may affect the employee’s work performance, i.e. which level would represent a breach of the employee’s work discipline. As a result, the Constitutional Court established that the employer is entitled to regulate such issues with its internal regulations.

Accordingly, the Constitutional Court concluded that an employer can regulate by its internal act that any presence of alcohol above 0.00‰ may have an impact on the employee’s performance of work. The employer can also prescribe such cases as a violation of the employee’s work discipline and, consequently, as a reason employment termination.

The practice of the basic courts’ case-law regarding this issue is not uniform. Thus, in some decisions the court found that, before terminating an employment, the employer must in every single case determine whether the presence of alcohol in organism of the employee has an impact of his/her performance of work duties. This decision of the Constitutional Court may lead to a less diverse court practice on this issue.