The mere possibility that the selected candidate and the employer sign the employment contract before the former terminates their employment contract with their current employer is not sufficient for the legal certainty of job candidates if neither employers nor workers are aware of this possibility and therefore do not use it. Hence, the Human Rights Ombudsman of the Republic of Slovenia proposed to the Ministry of Labour, Family, Social Affairs and Equal Opportunities supplementation of the Proposal of the act on amendments and supplementation of the Employment Relationships Act.

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The complainant stated in the complaint to the Human Rights Ombudsman of the Republic of Slovenia (Ombudsman) that he had been selected in a tender for a vacant position in one of the private companies. When he was informed of the selection, he was also asked to resign as soon as possible from the employer where he was employed at the time, which he did. During the notice period, the future employer referred him to a preliminary medical examination and occupational health and safety training, which he completed. However, the day before the expected signing of the employment contract, the company informed him that they could not hire him due to a decline in orders. The complainant was thus left without work, as well as without unemployment rights. He sought help from the Labour Inspectorate of the Republic of Slovenia (IRSD), who told him that they could not help him and directed him to the courts. It was explained to him that the IRSD would only have the authority to intervene if he had already signed an employment contract or if he applied for a public tender in the public sector and was issued a selection decision.

The Ombudsman, given its powers, could not directly help the complainant. However, since the case raised the question of the legal certainty of already selected job candidates with whom the employment contract was not concluded due to reasons on the part of the employer, the Ombudsman decided to investigate this issue in more detail based on Paragraph 2 of Article 9 of the ZVarCP. Namely, the Ombudsman assumed that there are not a few cases like those of the complainant in the private sector. After receiving notification that they have been selected, job applicants terminate their current employment contract due to the expiration of the notice period as soon as possible, in good faith that they will be employed by a new employer. Then, the actual signing of the employment contract with the new employer may not actually happen for reasons on the employer's side. The Employment Relationships Act (ZDR-1) does not prescribe the obligation to issue a decision on selection, as is stipulated for selected officials in Article 63 of the Public Employees Act (ZJU), and many individuals are not aware of the possible consequences that may occur. This is also what apparently happened in the above-described case of our complainant.

The Ombudsman ascertained the position of the Ministry of Labour, Family, Social Affairs and Equal Opportunities (MDDSZ). They assessed the current regulation regarding the conclusion of an employment contract in the ZDR-1 as adequate. The MDDSZ drew attention to Paragraph 2 of Article 11 of the ZDR-1, which stipulates that the rights and obligations based on the performance of work in an employment relationship and inclusion in social insurance based on the employment relationship begin to be realised on the day of commencement of work specified in the employment contract. This enables the parties to the contract to specify a later date of commencement of work in the employment contract due to various circumstances (e.g. expiration of the employee's notice period at the current employer), and the employment contract becomes effective from this date. According to the MDDSZ, the legal certainty of the candidate (and also the employer) is ensured primarily by the possibility for the parties to agree on the date of the start of work in the employment contract. In such a case, the employment relationship is concluded with the conclusion of the employment contract between the parties, and the rights and obligations based on the performance of work in the employment relationship begin to be realised later, with a date agreed by the parties based on specific circumstances and interests.

Although the Ombudsman agreed with the explanations regarding the provisions of the current legislation, he could not fully follow the opinion of the MDDSZ that the legal certainty of the job candidate is thus completely adequate or that it could not be better. It actually seems that neither employers nor job candidates are sufficiently aware of the possibility that they can conclude an employment contract before the termination of the employment relationship with the current employer, and in it specify a later date of starting work. Therefore, problems similar to those encountered by the complainant who turned to the Ombudsman can arise.

The Ombudsman also could not ignore the finding that the selected candidates for employment under the ZDR-1 are in a worse position than the selected candidates for employment in official positions in the public sector, to whom the employer issues a selection decision before signing the employment contract in accordance with Article 63 of the ZJU. In the Ombudsman’s opinion, the mere possibility that the selected candidate and the employer sign the employment contract before the former terminates their employment contract with their current employer is not sufficient for the legal certainty of job candidates if neither employers nor workers are aware of this possibility and therefore do not use it.

Since the Proposal of the act on amendments and supplementation of the Employment Relationships Act (EVA 2022-2611-0061) is currently in the legislative process, the Ombudsman suggested that the MDDSZ consider the possibility of a different legal arrangement that would increase the legal certainty of already selected job candidates, either by bringing it closer to the provisions of the ZJU, or by writing a different, clearer text in the ZDR-1; for example, in such a way that workers or job candidates, as the weaker party, would be better protected and aware of their rights and could ask the new employer to sign an employment contract with the start of work at a later date and then only after signing this contract resigned from the current employer. The MDDSZ rejected the Ombudsman's proposal with the opinion that such an intervention in the legal regulation would excessively interfere with the legal position of the employer as the other contractual party, and in view of the already valid regulation, in the opinion of the MDDSZ, such a measure would not be appropriate or necessary to achieve the pursued goal (i.e. the provision of legal certainty of a worker or job candidate). The Ombudsman cannot accept the MDDSZ’s explanation and would like the imminent change of the legislative framework to follow the stated position, which would ensure greater safety for workers or job candidates. 10.0-1/2023