The Act on Prohibition of Harassment at Work (“Anti-Harassment Act”) of Republika Srpska entered into force on 19 October 2021. It introduces protection mechanisms against harassment within the work environment and imposes certain ex ante obligations on the employers.
Definition of harassment at work
Harassment at work is defined as any behavior (physical, verbal, or non-verbal) which may cause harm of physical, mental or sexual nature. It is not necessary that the behavior is continuous or frequent. Even an act undertaken only once or an occasional behavior may qualify as harassment.
Protected persons
The Anti-Harassment Act protects not only formal employees but also workers engaged outside employment, such as contractors, temps, interns and trainees, as well as job candidates, and even employers.
Perpetrators
Potential perpetrators are employers (when natural persons), director and other managers at an employer which is a legal entity, employees (individually or as a group), and third persons with whom employee/employer regularly comes into contact as part of the work process. Inciting and assisting mobbing is also caught by the prohibition.
Protection procedure
If an employee, other worker or job candidate believes that (s)he is a victim of horizontal mobbing, (s)he has 30 days from the last mobbing action to submit a protection request to the employer. Thereafter, the affected person and the perpetrator may conclude a written agreement on the measures to stop and prevent further harassment and, potentially, damages.
If no agreement is reached within 15 days from the submission of a request for protection, the affected party may address the state Agency for Amicable Settlement of Labour Disputes (Agencija za mirno rješavanje radnih sporova) within three months from the day when the last act of harassment was taken or from the day when the 15-day period in which the employer should have carried out the protection procedure expired. Alternatively, the affected person can file a lawsuit against the employer within three months from the day of suspension of the procedure before the Agency, provided not more than six months has passed from the day when the last act of harassment was committed. The employee has the following remedies at his/her disposal: declaratory relief, prohibition of further harassment; injunction ordering action to remove the consequences of harassment; damages; and publication of the judgment. Once the employee shows likelihood of mobbing, the burden of proof shifts to the employer who has to prove that mobbing did not take place.
In case of vertical mobbing, the employee has a right to directly submit a proposal for peaceful settlement of the dispute, or to file a lawsuit, without prior obligation to file request for protection to the employer.
Even though the Anti-Harassment Act stipulates that harassment may come also from a third person with whom employee/employer regularly comes into contact as part of the work process, it does not contain any provisions on protection from such harassment.
Disciplinary procedure
Upon becoming aware of a harassment act, the employer is obliged to initiate a procedure for establishment of a violation of work discipline against the employee or other worker who is the alleged perpetrator. This means conducting disciplinary proceeding in accordance with the respective employer’s general enactment, that may result in addressing a written warning to the worker, by imposing a fine to him/her, or with termination of his/her employment, depending on the severity of the injury.
Special measures of protection
When the victim’s life or health are in danger, as confirmed by a medical doctor, the employer has the obligation to transfer the employee accused of harassment to another work environment (to do the same or another jobs), or send him/her on a garden leave until the agreement is reached or, in the absence of the agreement, until the employer suspends the procedure. If the employer does not take this measure, the employee whose life/health is in danger may refuse to work, and is entitled to a full salary in lieu.
Ex-ante obligations of employers
Employers have an obligation to notify the employees or their representatives on the rights, duties, prevention measures, causes, manifestations and consequences of harassment at work, and to organize anti-harassment trainings.
The employers with more than 15 employees must also enact anti-harassment rulebook until 19 April 2022 or face penalties in the range from BAM 2.000-12.000 (plus BAM 200-1.200 for the director).
