Employers, interested in modernizing their business and divesting it of bureaucratic forms, are interested in signing documents electronically, but this raises the issue of legal validity of electronically signed documents, as well as the legal consequences and risks in case of electronic signing of documents.
A qualified electronic signature has the same effect as a handwritten signature
Although the Law on Electronic Document, Electronic Identification and Trust Services in Electronic Business explicitly provides that a qualified electronic signature has the same effect as a handwritten signature, and that an electronic document cannot be denied legal effect, probative force or written form – solely on the grounds that it is in an electronic form, the regulations governing labour relations insist on the traditional written form, with the accompanying specific delivery rules.
Can an employment contract be concluded in an electronic form?
An employment contract is concluded in no less than three copies, one of which must be handed over to the employee, while the other two are kept by the employer.
If an employer should conclude a fixed-term employment contract in an electronic form, the employee could file a lawsuit claiming that the employment relationship is established for an indefinite period, invoking the provisions of the Labour Law: An employment contract shall be concluded before the employee commences work, in writing. If the employer fails to conclude an employment contract with the employee in accordance with Paragraph 1 hereof, it shall be considered that the employee has established an employment relationship for an indefinite period as of the day of commencing work.
Can an employment contract be terminated in an electronic form?
An employment contract is terminated under a decision, in writing, and must contain a reasoning and instructions concerning the legal remedy. The decision must be delivered to the employee in person, at the premises of the employer, i.e. to the address of the permanent or temporary residence of the employee.
If an employer were to terminate an employment contract with an employee in an electronic form, it is fairly certain that the court would hold such a decision on termination of employment contract to be illegal.
Bright exceptions as to the use of electronic form in employment relationships
On the other hand, the only two “bright” exceptions, where the Labour Law explicitly allows for delivery in an electronic form, are the decisions concerning the use of annual leave and the salary calculation. This is supported by the opinion of the Ministry:
An employment contract is concluded in writing and is terminated by a decision in writing, just like any other decision on exercising rights, obligations and responsibilities, except for the decisions on the use of annual leave and salary calculation, which the employer can deliver in an electronic form. However, even in the above cases, the position of the Ministry is that the above documents are to be delivered as scans, and not by using a qualified electronic signature.
Inconsistencies in regulations and lack of understanding of the competent authorities
The obvious inconsistencies in regulations, lack of understanding of the competent authorities and a raised bar for misdemeanour liability of the employer in case of acting contrary to the provisions of the Labour Law, make it abundantly clear that any decision by the employer to electronically sign a labour law document will be attended by significant risk and uncertainty.
Should you have any queries regarding the possibility of using electronic documents in employment, please do not hesitate to contact us at: firstname.lastname@example.org.Translation: Vojislava Katić