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Montenegro
 


Source and scope of regulations - 2017    

References
  • Labour Law [LL], Act No. 49/08, as amended by Act No. 031/2014 of 24 July 2014
    The link provided is in Montenegrin
    Date: 24 Jul 2014; view website »
Scope
Size of enterprises excluded (≤): 20
Remarks:
  • This exclusion only covers collective dismissals: the procedural requirements on collective dismissals only apply to enterprises with at least 20 workers (see definition of collective dismissal in art. 92 LL). However, the rules governing individual dismissals apply to all enterprises.

Workers' categories excluded: none
Remarks:
  • See art. 2 LL: the law applies to all employees including those employed in state authorities, state administration, local government and public services, unless otherwise regulated by statute.
    A law on Civil Servants and State Employees No 50/08 was adopted in 2008. Art. 4 of that law Art. 4 provides that "general labour regulations as to rights, obligations and responsibilities, which are not otherwise regulated by this law or other regulation, shall apply to Civil Servants, and State Employees".


Collective agreements

Remarks:
  • This agreement was last revised in December 2011 to extend its period of application until 30 June 2012.
    (amendment available at: http://www.sllistcg.me/PravniAktDetalji.aspx?tag={A82BD6BA-1872-4885-9FF2-FA01C8C9EB45})

General Collective Agreement, concluded on 19 December 2003, amended (available only in Montenegrin)


Types of employment contracts - 2017    

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Maximum probationary (trial) period: 6 month(s)

Remarks:
  • Art. 19 LL: the trial period shall not exceed 6 months except for crew members of long-haul commercial ship, in which case the trial period lasts until the return of the ship to the port of origin.
    Art. 20(2) LL provides that if the employee fails to satisfy the job requirements, his/her employment shall terminate upon expiry of the trial period as stipulated in the contract.
    As an exception to this rule, during the probationary period, each party may unilaterally terminate the contract even before the expiry of that period, with a written justification, in accordance with the collective agreement and the labour contract. (art. 20(3) LL).

Fixed term contract (FTC):
  • FTC regulated: Yes
    Remarks:
    • Arts. 24 to 26 LL.
      New in Dec. 2011:Article 24(1) LL provides that "as a rule, a contract of employment contract shall be concluded for an indefinite period of time", while fixed-term contract are the exception and may entered into only in limited circumstances foreseen in the law. No such rule existed before the 2011 amendment, as the the law provided that employment contracts could be concluded or an unlimited or limited duration without any further indication on which of those two was the standard contract.
  • Valid reasons for FTC use: objective and material reasons
    Remarks:
    • New in Dec. 2011:
      Art. 25(1) LL now provides for limitation in respect of the reasons for which FTCs can be concluded: "A contract of employment may be concluded for a fixed term for the purpose of performing certain jobs whose duration is predetermined for objective reasons or due to occurrence of unforeseeable circumstances or events".
      Prior to this amendment they was no such limitation in the 2008 LL.
      (The previous LL of 2003 (amended in 2005) contained a limited list of valid reasons justifying the use of FTCs)
  • Maximum number of successive FTCs: no limitation
    Remarks:
    • The Labour Law does not impose any limitations on the number of successive FTCs.
  • Maximum cumulative duration of successive FTCs: 24 month(s)
    Remarks:
    • New in Dec. 2011: The 2011 amendments introduced, as a general rule a maximum duration of 24 months: art. 25(2) LL.
      However, in 2011 the law also introduced an exception to the 24-month rule in art. 25(4): FTCs can last longer than 24 months if they are concluded in order to replace a temporarily absent employee (and the absence is longer than 24 months) or for performing seasonal work or working on a for a specific task or project. In the latter case it shall last until the completion of the project.

Substantive requirements for dismissals (justified and prohibited grounds) - 2017    

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Obligation to provide reasons to the employee: Yes
Remarks:
  • Art. 143c(2) LL: The dismissal decision shall contain the grounds for termination of employment, an explanation and a note indicating available legal remedies.
    (See also art. 143b LL: prior to any dismissal based on disciplinary grounds, the employer shall warn in writing the employee about the existence of reasons that can justify the dismissal. He/she must and to give him/her at least five days to respond.)

    Note: following the 2011 amendments, the relevant article numbers have changed but not their content.


Valid grounds (justified dismissal): worker's capacity; worker's conduct; economic reasons
Remarks:
  • New in 2011: The provision on valid grounds for dismissal has been substantially modified by the amendments to the LL adopted in December 2011.

    Art. 143(1) LL, as amended in December 2011 provides that "the employer may terminate the labour contract if there is a justified reason for such action" and gives an exhaustive list of 8 instances when termination of employment by the employer is authorized [instead of 16 under the 2008 LL] :
    "1. if an employee fails to meet the results of work defined by collective agreement, employer's act or contract of employment; in a period of not less than 30 days;
    2. if an employee fails to comply with obligations prescribed by the law, collective agreement and contract of employment, which shall comply with the law and the collective agreement;
    3. if an employee's behaviour is such that he/she cannot continue employment with the employer, in cases prescribed by the law and the collective agreement or employer's act, which shall comply with the law and the collective agreement;
    4. if an employee refuses to conclude an annex to the contract of employment referred to in Article 40 paragraph 1 items 1 and 2 of this Law [i.e: for the purpose of deployment to another adequate job, due to the needs of the process and organization of work - for the purpose of deployment to another position with the same employer, if the activity of the employer is of such nature that the work is performed in places outside the employer's headquarters, or employer's organization unit,];
    5. if an employee refuses to conclude an annex to the contract of employment referred to In Article 40 paragraph 1 Item 3 of this Law [i.e: regarding the definition of wages];
    6. if an employee abuses the right to leave for temporary inability to work;
    7. due to economic problems in operations;
    8. in case of technical and technological, or structural changes as a result of which an employee is no longer needed."

    [Prior to the amendments, art. 143 read as follows:
    The employer may terminate the labour contract "if there is a justified reason to do so regarding working capacity of the employee, his behaviour and needs of the employer"
    1) if the employee refuses to work in the job position that he is assigned to or refuses to fulfill duties at work referred to in the labor contract;
    2) if the employee does not comply with a labor discipline envisaged by the employer's act and the labor contract, i.e. if his behavior is such that he cannot continue working with the employer;
    3) with the expiration of the period for which the employment contract for a limited time is signed, i.e. with the expiration of the period of validity of the labor contract signed for a limited time;
    4) if the employee comes to work under the influence of alcohol or narcotics, drinks during work or uses narcotics;
    5) if the employee was unjustifiably absent from work for five consecutive business days, or seven business days with interruptions within the period of three months;
    6) if the employee fails to state his opinion on the offer or refuses the offer to conclude the annex to the labor contract, under Article 40, paragraph 1, items 1 and 2, within the deadline referred to in Article 41, paragraph 2 of this Law;
    7) if the employee fails to show adequate results during trial work;
    8) if the employee is provided with one of the rights based on redundancy under Article 93, paragraph 2, item 5 of this Law;
    9) if the employee refuses one of the rights that the employer offered him on the basis of the redundancy;
    10) when the severance pay is paid out to the employee on the basis of redundancy;
    11) if the employee fails to return to work within 30 days, under Article 76 paragraph 3 of this Law;
    12) if the employee gave false data regarding the performance of the activities that he concluded the labor contract for when starting to work, i.e. when entering employment, and during the employment;
    13) if a pecuniary fine is imposed on the employee for violation of duties at work two or more times within a period of one year;
    14) if the employee works for another employer under Article 58, paragraph 1 of this Law, without the consent of the employer where he is employed full time;
    15) if the employee contracts the activities within the scope of business activity performed by the employer to his own account or account of another person (unfair competition);
    16) and in other cases determined by the collective agreement."]


Prohibited grounds: marital status; pregnancy; maternity leave; family responsibilities; filing a complaint against the employer; temporary work injury or illness; race; colour; sex; sexual orientation; religion; political opinion; social origin; nationality/national origin; age; trade union membership and activities; disabilities; financial status; language; parental leave; whistle blowing; birth; state of health; ethnic origin
Remarks:
  • Art. 143a LL, a new provision introduced in December 2011, provides a list of prohibited grounds for termination, as follows:
    1) Temporary absence from work due to illness, accident at work or occupational disease;
    2) Maternity or parental leave, absence from work for child care and absence form work due to special child care;
    3) membership in a political organization, trade union, distinction based on personal characteristics of the employee (gender, language, ethnicity, social status, religion, political or other beliefs or other personal characteristics of the employee)
    4) acting as a representative of employees, in accordance with the law;
    5) in case an employee addresses trade unions or competent authorities for protection of employment rights in accordance with the law and contract of employment;
    6) in case an employee addresses the competent public authorities for reasonable suspicion of corruption or filing a complaint of such suspicion in good faith;
    7) in case an employee addresses or point out to the employer or relevant public authorities environmental threat connected to the operations of the employer.

    See also the following provisions which were already included in the 2008 LL:
    - Art. 5 LL prohibits discrimination of job seekers and employed persons on the grounds of gender, birth, language, race, religion, skin colour, age, pregnancy, health condition, disability, nationality, marital status, family responsibilities, sexual orientation, political or other belief, social backgrounds, financial status, membership in political and trade union organization or any other personal feature.
    - Art. 7(1)5) LL specifies that such discrimination shall be prohibited with regards to termination of employment.
    See also art. 108 LL: prohibition of dismissal on the grounds of pregnancy or during maternity leave, absence for child care, parental leave... (see remarks under special protection).

    Therefore, what is new in 2011 is the introduction of a comprehensive provision on prohibited grounds for dismissal in addition to scattered provisions on discrimination or specific protection against dismissal in certain situations. In addition, compared to the grounds already prohibited in the 2008 LL, new grounds have been introduced : temporary absence from work due to illness, accident at work or occupational disease; parental leave, absence from work for child care , and recourse to competent authorities where the following issues are at stake (infringement of employment rights, corruption, environmental threats)


Workers enjoying special protection: workers' representatives; pregnant women and/or women on maternity leave; workers with family responsibilities; confirmed injured workers; workers with disabilities
Remarks:
  • Art. 108 LL provides for protection due to pregnancy and child care:
    - It is prohibited to dismiss a female employee due to pregnancy and during maternity leave [minimum 38 days before childbirth and 45 days after, but allowed up to 365 days after childbirth] (art. 108(1) LL).
    - It is prohibited to terminate the employment of a the parent who works half time in order to take care of a child with severe development difficulties, a single parent of a child under seven years of age, or a child with severe disability. The law also specifies that they may not be declared redundant employees due to the introduction of technological, economic or restructuring changes [special child care leave](art. 108(1) and (2) LL)
    New in December 2011:
    The scope of the protection against dismissal has been extended. Art. 108(3) LL now prohibits dismissal during parental leave [minimum 45 days after childbirth may be up to 365 days] and absence from work due to child care.

    Art. 160(1) LL provides for specific protection of trade union representatives and in particular, states that they shall not be declared as redundant.
    New in December 2011: art. 143b(4) LL now provides for specific procedural requirements in the event of a disciplinary dismissal of a trade union member: prior warning notice must be communicated to the trade union of which the employee is a member, for the purpose of obtaining its opinion. The trade union must provide a statement with its opinion within 5 days.

    Art 94(3) LL provides for severance pay for workers suffering from disability (see under severance pay).


Procedural requirements for individual dismissals - 2017    

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Notification to the worker to be dismissed: written

Remarks:
  • Art. 143c(1)(2) LL.
    Note: following the 2011 amendments, the relevant article numbers have changed but not their content.

Notice period:
Remarks:
  • New in December 2011: The notice period has been extended to 30 days (instead of 15 days under the 2008 LL): art. 144(1) LL.
    • tenure ≥ 6 months
      • 30 day(s).
    • tenure ≥ 9 months
      • 30 day(s).
    • tenure ≥ 2 years
      • 30 day(s).
    • tenure ≥ 4 years
      • 30 day(s).
    • tenure ≥ 5 years
      • 30 day(s).
    • tenure ≥ 10 years
      • 30 day(s).
    • tenure ≥ 20 years
      • 30 day(s).

    Pay in lieu of notice: Yes

    Remarks:
    • Art. 144(2)(3) LL.

    Notification to the public administration: No

    Notification to workers' representatives: No

    Remarks:
    • Except in the event of a disciplinary dismissal of a trade union member (see art. 143b(4) LL - introduced in the LL in December 2011)

    Approval by public administration or judicial bodies: No

    Approval by workers' representatives: No

    Procedural requirements for collective dismissals for economic reasons (redundancy, retrenchment) - 2017    

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    Definition of collective dismissal (number of employees concerned):
    Termination due to technological, economic and restructuring changes of at least, within a 30 day-period of at least:
    - 10 employees in enterprises with more than 20, and less than 100 employees for an unlimited period of time;
    - 10% of employees in enterprises with minimum 100 and maximum 300 employees for an unlimited period of time;
    - 30 employees in enterprises with more than 300 employees for an unlimited period of time.
    It also covers redundancy of at least 20 employees within 90 days regardless of the total number of employees.

    Remarks:
    • Art. 92(1) LL.
      Notification to the trade union or workers' representatives and the Employment Agency is also required if the employer intends to dismiss at least 20 employees within the period of 90 days, regardless of the total number of employees (art. 92(2) LL).

      New in December 2011:
      There is no change in the definition of a collective dismissal. However, a new paragraph has been introduced to cover situations where the number of redundant employees does not reach the numerical threshold that would trigger specific notification and consultation requirements. According to art. 92(4) LL: "If the employer determines that due to technological, economic and structural changes , the number of redundant employees with a contract of employment for an indefinite period is less than the collective dismissal threshold, the employer shall notify the employee at least five days prior to the decision to terminate his/her employment. "

    Prior consultations with trade unions (workers' representatives): No

    Remarks:
    • The labour law provides for mandatory notification (art. 92 LL), however consultations are not expressly required: art. 92(4) only states that the employee's representatives or the trade union and the Employment Agency shall submit to the employer their opinion on the notification within 15 days from the date of receipt of such a notification.
      New in December 2011: This timeframe was extended to 15 days. It was previously 8 days.

    Notification to the public administration: Yes

    Remarks:
    • Art. 92(1) LL: the employer must inform immediately in writing the Employment Agency of Montenegro. Such notification shall include:
      - the reasons for redundancy,
      - the number and category of employees employed under a contract of unlimited duration,
      - the criteria for selecting the redundant employees,
      - the timeframe for implementing the employment measures of the redundant labour force,
      - the criteria for calculating redundancy pay

      Within 15 days from the date of receipt of such a notification, the Employment Agency must communicate to the employer its views on the notification (art. 92(5) LL)
      [New in December 2011: This timeframe was extended to 15 days. It was previously 8 days.]

    Notification to workers' representatives: Yes

    Remarks:
    • Art. 92(1) LL: the employer must inform immediately in writing the the trade union, i.e. representatives of the employees. Such notification shall include:
      - the reasons for redundancy,
      - the number and category of employees employed under a contract of unlimited duration,
      - the criteria for selecting the redundant employees,
      - the timeframe for implementing the employment measures of the redundant labour force,
      - the criteria for calculating redundancy pay.

      Within 15 days from the date of receipt of such a notification, the trade union or employees' representatives must communicate to the employer their views on the notification (art. 92(5) LL)
      [New in December 2011: This timeframe was extended to 15 days. It was previously 8 days.]

    Approval by public administration or judicial bodies: No

    Remarks:
    • No approval required. According to art. 92(4) LL, the Employment Agency of Montenegro is only required to submit its opinion to the employer.

    Approval by workers' representatives: No

    Priority rules for collective dismissals (social considerations, age, job tenure): No

    Remarks:
    • No statutory criteria in the LL.
      Information on selection criteria shall be communicated by the employer to the Employment Agency and the worker's representatives (art. 92(3) LL).
      Art. 93(2)2) states that upon obtaining the opinion of the trade union, i.e. representatives of employees and the Employment Agency of Montenegro, on the notification of the termination of employment, the employer must adopt the program of measures for resolving redundancy and that this program, among other, must contain the criteria for determining redundant employees. The criteria for determining redundant employees must not oppose to the provisions of the Labour Law regarding prohibition of discrimination against employees.

    Employer's obligation to consider alternatives to dismissal (transfers, retraining...): Yes

    Remarks:
    • Art. 93(2)5 LL: upon obtaining the opinion of the trade union, i.e. representatives of employees and the Employment Agency on the redundancy notification, the employer must adopt the program of measures for resolving redundancy and this program, among other, must contain employment measures.
      These are:
      - transfer to another job within the same level of professional qualifications with the same employer;
      - transfer to another job within the same level of professional qualifications with another employer upon the employee' s consent (New in December 2012)]
      - professional training, retraining or additional training for another job position with the same or another employer;
      - other measures in accordance with the collective agreement or the contract of employment.

      [No major changes in December 2011 - The same measures remain. However, the law now specifies that the employee's consent is required for any transfer to a position with another employer. In addition, the law does not contain any more the reference to transfer (with the same or another employer) to similar positions with "full or part-time working hours"]

    Priority rules for re-employment: No

    Severance pay and redundancy payment - 2017    

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    Severance pay:
    Remarks:
    • Under the 2008 Labour Law, there was no general right to severance pay upon dismissal except in case of redundancy. Following the 2011 amendments, the right to severance pay has been extended to other non-economic valid grounds of dismissals, namely poor performance (failure to meet the expected results) , refusal to conclude an annex amending the employment contract with respect to the definition of wages. In addition, two new economic grounds have been added, namely economic difficulties and technical, technological or structural changes as a result of which an employee is no longer needed (see under redundancy pay). However, when an employee is dismissed on one of the other valid grounds listed in art. 143 LL, he/she is not entitled to severance pay.

      The amount of severance pay has also changed.
      Under art. 94 LL, modified in December 2011, severance pay must amount to at least 1/3 of the employee's monthly pay in the last six months (less the taxes and contributions) for each year of employment with the employer, or 1/3 of the average monthly pay less the taxes and contributions in Montenegro, if the latter is more favourable for the employee (art. 94(1) LL). In any case, severance pay must not be lower than three average monthly wages in the last six months less taxes and contributions by the employer, or the average monthly wages less taxes and contributions in Montenegro in the last six months, if the latter is more favourable for the employee.
      New in 2011: The law introduces a calculation method based on the employee's length of service. In addition, the law provides for a minimum amount of 3 months' pay which may either be based on the employee's salary in the last 6 months, or the average salary in Montenegro in the last 6 months, whichever is more favourable to the employee. Under the 2008 LL, they was no such seniority-based calculation method and the law only provided for a fixed amount of severance pay of at least 6 month's pay on the basis of the average salary (excluding taxes and contribution) in Montenegro in the month preceding the dismissal (and not the employee's salary).

      Employees with disabilities are entitled to higher severance pay. There has not been any change in this respect in the 2011 amendments. Severance pay amounts to:
      * at least 24 average monthly wages, if the disability resulted from injury not related to work or from illness;
      * at least 36 average monthly wages, if the disability resulted from an work injury or a professional disease.
      (Severance pay shall be based either on the employee's salary , or the average salary in Montenegro whichever is more favourable to the employee) (art. 94(3)(c) LL).
    • tenure ≥ 6 months: 3 month(s)
    • tenure ≥ 9 months: 3 month(s)
    • tenure ≥ 1 year: 3 month(s)
    • tenure ≥ 2 years: 3 month(s)
    • tenure ≥ 4 years: 3 month(s)
    • tenure ≥ 5 years: 3 month(s)
    • tenure ≥ 10 years: 3.33 month(s)
    • tenure ≥ 20 years: 6.67 month(s)
    Redundancy payment:
    Remarks:
    • Art. 94 LL provides for the right to redundancy pay of an employee who is made redundant and is not granted any of the rights included in art. 93(2)5) (employment measures such as transfer, retraining for another position....)
      - This payment shall amount to at least 6 months' average wages in Montenegro.
      - Higher amounts shall be given to employees with disabilities, as follows:
      * at least 24 average monthly wages, if the disability resulted from injury not related to work or from illness;
      * at least 36 average monthly wages, if the disability resulted from an work injury or a professional disease.
    • tenure ≥ 6 months: 3 month(s)
    • tenure ≥ 9 months: 3 month(s)
    • tenure ≥ 1 year: 3 month(s)
    • tenure ≥ 2 years: 3 month(s)
    • tenure ≥ 4 years: 3 month(s)
    • tenure ≥ 5 years: 3 month(s)
    • tenure ≥ 10 years: 3.33 month(s)
    • tenure ≥ 20 years: 6.67 month(s)

    Avenues for redress (penalties, remedies) and litigation procedure for individual complaints - 2017    

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    Compensation for unfair dismissal - free determination by court: Yes

    Remarks:
    • New in Dec. 2011: While there were no provisions on compensation in the 2008 LL, the amendments passed in December 2011 introduced new rules on compensation to be awarded to an employee in the event of unfair and unlawful dismissal (Art. 143(4)(5)(6) LL. (see below)

    Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
    In the event of unlawful or unjustified dismissal, the employee shall be entitled to a compensation of financial and non-financial damage in addition to reinstatement, as follows:
    - Compensation for financial damages amounts to the lost wages and other income the employee would have received if she/he had been employed and the contributions for mandatory social insurance. Earnings realized by the employee based on the employment contract upon termination of employment shall be deducted by the aforementioned amount for mandatory social insurance.
    - In addition, the Court may award compensation for non-pecuniary damages if its rules that dismissal resulted in violation of the employee's rights of personality, honour, reputation and dignity, the amount of which shall be freely determined by the Court.

    Remarks:
    • Article 143d(3)(4)(5) LL. Those articles have been introduced into the Labour Law by the amendments adopted in December 2011.

    Reinstatement available: Yes

    Remarks:
    • Art. 143d LL
      New in Dec. 2011: While there was no statutory provision on reinstatement in the 2008 labour law, the 2011 amendments introduced reinstatement as the primary remedy for reinstatement. According to article 143d(3) LL "if the competent body determines that the dismissal was carried out without legal or justifiable grounds, whether prescribed by an act of the employer or agreed by the employer in the contract of employment, the employee shall be entitled to return to work, as well as to a compensation of financial and non-financial damage in a procedure prescribed by the law".

    Preliminary mandatory conciliation: No

    Competent court(s) / tribunal(s): ordinary courts

    Remarks:
    • Art. 143d LL:
      Within 15 days from the date of the receipt of the dismissal decision, an employee may challenge that decision before the competent. Alternatively, he/she can challenge it before the Agency for Amicable Settlement of Labour Disputes.
      There are no specialised labour courts in Montenegro; labour disputes are heard by ordinary courts.

      Note: following the 2011 amendments, with regard to the competent court, the relevant article number has changed but not its content (with the exception of the inclusion in this article of the possibility to submit the dispute to the Agency for Amicable Settlement of Labour Disputes (see below under arbitration)

      With respect to the burden of the proof in dismissal disputes, there was no provision in the 2008 LL. The 2011 amendments introduced a new, the 2011 amendment introduced a new provision (art. 143d(2) according to which the burden of proving that the grounds of dismissal are justified and lawful rests on the employer.

    Existing arbitration: Yes

    Remarks:
    • Art. 143d LL (new in December 2011):
      Within 15 days from the date of the receipt of the dismissal decision, an employee may challenge that decision before the competent. Alternatively, he/she can challenge it before the Agency for Amicable Settlement of Labour Disputes.

      [New in 2011: The possibility to settle dismissal disputes through the Agency for amicable settlement of labour disputes has been introduced in December 2011. In the 2008, there was only a reference in art. 121(1) LL to the possibility of submitting individual labour disputes to an arbitrator.]

    Source of additional information - 2017    

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    Links

    ILO Committee of Experts on the Application of Conventions and Recommendations - Comments on the ILO Termination of Employment Convention, 1982, No. 158 »