Can you DocuSign employment agreements, dismissal documents, and other employment-related documents?
The short answer is – it depends on the document and the type of electronic signature used.
First things first: What type of signature does DocuSign produce?
DocuSign's standard signing functionality produces a simple electronic signature, which does not have the same legal effect as a handwritten signature. DocuSign also offers qualified electronic signature (“QES”) solutions. A QES has the same legal effect as a handwritten signature, but whether a QES created through DocuSign is recognised as qualified under Serbian law depends on the trust service provider that issued the qualified certificate used for signing.
Currently, only qualified certificates issued by Halcom a.d. Beograd, a Serbian trust service provider, are both recognised under Serbian law and can be used to create a QES through DocuSign.
Question: Can I DocuSign an employment agreement?
Answer: Arguably yes, but only with a QES recognised in Serbia.
Although the Labour Act contains two requirements that appear to have been drafted with “hard copy” documents in mind, we think that neither rules out an electronic document signed with QES.
First, the Labour Act provides that an employment agreement is concluded when both parties sign it. We do not think this has to mean a handwritten signature. The Electronic Document, Identification, and Trust Servies Act gives QES the same legal effect as a handwritten signature, unless a law excludes electronic signing for the particular legal act. It also provides that neither the written form of a document nor the legal validity and evidentiary value of an electronic signature can be denied solely because of their electronic nature. As the Labour Act does not expressly exclude signing of the employment agreement electronically, we think that a QES could satisfy the signature requirement.
Second, the Labour Act requires employment agreements to be made in at least three original copies, one of which must be handed over to the employee. How does this requirement apply to agreements concluded electronically? In our opinion, providing the employee with an electronically signed version should satisfy the purpose of the rule, which is to ensure that both parties have a copy. The wording does, however, leave room for different interpretations, which is why we consider electronic signing of employment agreements arguably possible.
Question: Does this mean that I can use any qualified certificate supported by DocuSign?
Answer: No, only those recognised in Serbia.
Serbia recognises QES created using qualified certificates issued by trust service providers on the Serbian register (available here). Under mutual recognition agreements, it also recognises QES created using qualified certificates issued by providers on the Montenegrin register (available here) and North Macedonian register (available here).
This limits the use of DocuSign in Serbia, as a qualified certificate issued by EU trust service providers are not recognised under Serbian law. We have identified only one provider whose qualified certificates are both recognised in Serbia and supported by DocuSign – Halcom a.d. Beograd.
Question: Can I DocuSign dismissal decisions and other documents requiring personal delivery?
Answer: No.
The Labour Act sets out a specific procedure for delivering certain decisions to employees, such as dismissal decisions and decisions on suspension with or without pay. These decisions must be delivered personally to the employee, at the employer's premises or at the employee's home address. If the attempted personal delivery fails, the employer must publish the decision on its notice board.
In our opinion, this procedure effectively requires the employer to issue these decisions in hard-copy form.
Could an employer sign a decision electronically and then print it for delivery? Not without complications. Under the Electronic Document, Identification, and Trust Services Act, a printout of an electronically signed document constitutes a copy of the document, not an original. Giving that copy the same evidentiary value as the original requires compliance with statutory formalities that are cumbersome and defeat the purpose of signing electronically.
Stick to wet-ink signatures for documents subject to personal delivery rules.
Question: Can I DocuSign documents that do not require personal delivery or a particular form of signature, such as mutual termination agreement?
Answer: Yes.
We think that documents that are not subject to personal delivery or specific signature requirements, such as mutual termination agreements, can be signed electronically. A standard DocuSign signature should suffice.
