Employment Flash News No. 11/2015
News on the dismissal of an employee holding an eligible position within the trade union
According to a press release from the Constitutional Court, on November 24th 2015, the Constitutional Court admitted the exception of unconstitutionality against the provisions of art. 60 para. (1) let. g of the Labour Code which regulate that the dismissal of employees cannot be implemented […] during the exercise of an eligible position within a trade union, except for the dismissal for gross or repeated misconducts committed by the respective employee.
The Court stated that the regulation’s purpose, to protect the trade union’s activity by establishing a measure of protection for the mandate exercised by the members elected within the management bodies of the trade unions, cannot come into conflict with the employer’s interests, which, by observing the criticised provisions, is placed in the situation to bear an excessive obligation, able to affect his property right acknowledged by art. 44 of the Constitution.
In addition, the Court considered that a protection for the persons elected within the trade union’s management bodies is obviously required, but such protection must function exclusively in relation with the trade union activity effectively performed (protection already ensured by the provisions of art. 220 par. (2) of the Labour Code), and not with respect to the basic professional activity of the employee, who is in an identical legal situation as the one of the other employees as regards the applicability of the provisions within art. 61 and 65 of the Labour Code.
Decision no. 22 from 19th of October 2015 regarding the Referral in the interest of the law concerning the interpretation of art. 141 of the Labour Code with reference to art. 8 of the Government Ordinance no. 99/2000 regarding the trading of product and market services was published within the Official Gazette no. 876 from November 24th, 2015.
Trough the decision, The Supreme Court stated that :
“For the interpretation and application of the provisions of art. 141 of Law no. 53/2003 – Labour Code, republished, with the following amendments and completions, with reference to art. 8 of the Government Ordinance no. 99/2000 regarding the trading of product and market services, republished, it is established that the employer’s act of performing retail activities of non-food products within the working points from commercial centers during the legal holidays provided within art. 139 par. (1) of the Labour Code, republished, does not constitute the administrative offence set forth in art. 260 par. (1) let. g of this law when the employer accomplished its obligations set forth in art. 142 within the same normative act”.
Therefore, in order not be sanctioned with a fine ranging from 5,000 RON (approx. EUR 1,128) to 10,000 RON (approx. EUR 2257) based on art. 260 par. (1) let. g) of the Labour Code, the employer must observe the following obligations established within art. 142 of the Labour Code:
- employees who work during legal holidays in healthcare and public alimentation units, as well as in units where the activity cannot be interrupted because of the production process’ characteristics or the specific of the activity will be granted compensatory time off within the following 30 days;
- in case time off cannot be granted due to justified reasons, the employees benefit, for the work performed during legal holidays, of an increment to the base salary which cannot be lower than 100% of the base salary corresponding to the work performed within the normal working schedule.