In our previous article, we were concerned with the extent of this phenomenon, the obligations of the employer, the new (expanded) role of the Occupational Physician as well as the relevant (now necessary) Policies and relevant provisions of the Labor Regulations. The subject will “close”, in this article, with the rights of the affected persons, the expanded role of the Labor Inspectorate but also some “traps” of the relevant law.
Rights and protection of victims (a. 12)
Affected persons (even if the disputed relationship between them and the business has ended), are entitled:
(a) to seek judicial protection by claiming compensation for their positive and detrimental damages as well as their moral damage;
(b) to appeal to the Labor Inspectorate and the Ombudsman and, in addition,
(c) to lodge a complaint within the business.
When the offender is an employee (or works under another relationship), the employer is obliged to take the necessary measures against the accused, in order to prevent similar incidents / behaviors and not have them repeated. Such measures, which the employer is obliged to take, are (indicatively): the recommendations, possible changes in the position, the schedule, the place or the way of providing work of the accused. Also, the termination of the employment relationship or cooperation of the latter (: accused). It should be noted here, of course, that there is a (self-evident) restriction: the right to complain should not be exercised abusively to the detriment of the accused.
The rights of the victim are presented in an extremely extended way:
The victim is entitled to leave the workplace for a reasonable time (but after written notification of the employer). It is noteworthy that the non-provision, for this reason, of their work does not deprive them of their salary. However, in addition, any adverse consequences to them are not tolerated (especially when the employer is the perpetrator or when they do not take the necessary measures or when these measures are not capable of stopping the problematic behavior). In the event that the employer disagrees with the departure of the affected employee from the job, their only option is to appeal to the Labor Inspectorate (a. 18).
Finally, it should be noted that in case of violation by the Employer, or their representative, of the prohibitions set by law regarding the issues of violence and harassment, administrative sanctions are imposed (art. 19, §2 a’).
Prohibition of retaliation
In order to provide the necessary support to the affected employee, it is explicitly prohibited to take any retaliation or countermeasures against them (a. 13).
Indicatively, any adverse treatment is prohibited. And so is the termination of their contract (or forcing them to resign). It should be noted that, moreover, such retaliatory actions are identified as invalid in the event that they, nevertheless, take place.
Possibility of appeal by associations (a. 14)
Interestingly, the rights of the affected employee can be (also) exercised by legal persons, associations and trade unions. Necessary condition is for them to justify a legal interest and, in addition, to have the consent of the victim.
In this context it is possible e.g. for a trade union organization to exercise an appeal on behalf of the victim (or to intervene in support of the victim) before the competent administrative or judicial authorities.
The affected person is recognized, of course, the right to intervene and / or to cancel such a procedure, which was initiated by a third party on their behalf, regarding the specific issues.
The burden of proof and its reversal
The burden of proof rests, according to the law (a. 15), on the accused (with the exception of the criminal trial). What does this mean? It means that the accused is the one with the obligation to prove that the incident / event attributed to them did not take place. Which is illogical and, in fact, impossible. The (legal) argument adopted by the authors of the provision is unsubstantiated.
The reversal of the burden of proof on issues of violence and harassment has occupied us extensively in our previous articles. Closing this article we concluded:
“With all the required (unlimited and absolutely necessary) respect for victims of violence or harassment, it is extremely dangerous to reverse the burden of proof introduced by the bill to be put to the vote. As long as this provision remains as is, it is a given that the one that will be most at risk is the truth: Any dissatisfied employee (or former employee) will be able to invoke an incident of violence or harassment in order to strengthen their place. In this case, the defendant (: colleague, boss, subordinate or employer) will be called to do the impossible: prove the non-existence of the reported event.
Which is illogical. And, of course, unfair.
However, a possible persistence on this provision (under the weight of political choices or, possibly, social pressure) will certainly make some people happy:
Us lawyers!
Let’s choose.- »
The role of Labor Inspectorate
An independent Department for the monitoring of violence and harassment at work is established at the Labor Inspectorate (a. 16 & 17). Its object is the resolution of related labor disputes, the monitoring of the observance of the relevant obligations by businesses. Also, the provision of advice to businesses and employees as well as the maintenance of the Register of Employers to whom relevant sanctions were imposed.
In case of complaint (a. 18 & 19) before the Labor Inspectorate, the Ombudsman is informed, where required. The examination of the relevant case is carried out as a priority, in relation to the other cases pending before it. The relevant process must not only be completed within two months but also ensure the privacy of the persons involved and their personal data.
In case of confirmation of incidents that are subject to the provisions of the law, administrative sanctions are imposed at the end of the relevant procedure. They are the ones that will be provided by a Ministerial Decision to be issued (a. 22) which, in addition, will deal with the procedural issues related to the examination of the relevant disputes.
Specifically: the interim measures taken by the Labor Inspectorate
Given the specificity (but also the nature of the disputes related to the issue), the possibility of temporary measures imposed by the Labor Inspectorate is necessary (a. 19 §3), in order to have an immediate, as far as possible, management of an emergency situation as a rule.
Therefore, in the event that danger is suspected (for the life, health or safety of an employee), the accused is called “as soon as possible” to provide explanations. The Labor Inspectorate retains the possibility to issue an order, with immediate effect, to the employer subject to one or more of the following temporary measures- with a duration until it is proven that there is no risk. It is entitled, in particular, to order:
(a) the removal of the accused from the place of work with payment of all their remuneration;
(b) staff shift changes;
(c) the transfer of the accused to another department;
(d) the employment of the accused by teleworking or distance work depending on the nature of their duties.
It should be noted here that in the final wording of the law (in contrast to the bill that was put to consultation) it appears, logically, as possible to revoke or maintain the temporary measures that will be decided by the Labor Inspectorate with the conclusion on the dispute or the audit or with a new decision of the Labor Inspector.
Finally, in the event that the employer does not comply with the temporary measures set out in the order, a fine is imposed for each day of failure to implement them.
Violence and harassment within the terms of the employment relationship (or on this occasion) is, unfortunately, a phenomenon on a large scale – as recent research has shown.
It is, in fact, a matter of ensuring a sense of security in the workplace for all employees – especially women – who are most likely to be affected.
The provisions of the recent labor law on violence and harassment are absolutely sufficient. In fact, it is expected that they will prove capable of managing the existing, and very serious, relevant problem.
There is, of course, the danger of using the law as a means of pressure to achieve an unfair benefit. Unfortunately, such phenomena have already begun to occur.
We hope, however, for its utilization for the benefit of the afflicted and the weak.
Exclusively.-
Stavros Koumentakis
Managing Partner
P.S. A brief version of this article has been published in MAKEDONIA Newspaper (September 5th, 2021).
Disclaimer: the information provided in this article is not (and is not intended to) constitute legal advice. Legal advice can only be offered by a competent attorney and after the latter takes into consideration all the relevant to your case data that you will provide them with. See here for more details.