Non-pecuniary damages for wrongful dismissal

Abstract

One of the consequences of wrongful dismissal is the damage sustained by the unlawfully dismissed person. It may occur in two forms: as material damage and as non- non-material damage. In the event of a wrongful termination of employment, material damage is reflected in loss of earnings and other income that could have been received if there had been no wrongful dismissal, as well as in failure to pay contributions for mandatory social insurance. The compensation for material damage (pecuniary damages) for wrongful termination of employment is not a matter of controversy in Serbian theory and practice. Besides material damage, wrongful dismissal may also cause non-material damage. In the spirit of Serbian law, it may be reflected in sustained mental pain (for the violation of dignity and reputation, and/or violation of one's personality rights) and sustained fear. The right to claim compensation for non-material damage (non-pecuniary damages) is a subject matter of debate particularly in legal practice. The major issue of dispute in wrongful dismissal cases is the question whether it is necessary to award non-pecuniary damages for sustained mental pain or distress (in addition to pecuniary damages), or whether the rendered court decision (establishing that the dismissal has been wrongful and that the employee shall return to work) is a sufficient satisfaction. Inter alia, the same question has been posed in respect of the cases involving the unlawfully dismissed judges and prosecutors. The authors advocate the standpoint that a wrongful act cannot be fully remedied in all cases only by awarding declaratory relief and returning the employee to work. Hence, non-pecuniary damages should be awarded as compensation for non-material damage caused by wrongful termination or dismissal whenever it is justified by the circumstances of the case.