Employment Flash News No. 7/2015

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Case-law

News on suspension of the individual labour contract

Decision no. 279 dated April 23, 2015 of the Constitutional Court regarding the constitutionality of Art. 52 para. (1) letter b) of Law no. 53/2003 – Labour Code was published within the Official Gazette no. 431 dated June 17, 2015. According to art.52 para. (1) letter b) “The individual labour contract can be suspended in the following situations: (…) b) when the employer filed a criminal complaint against the employee, or the latter was committed to trial for criminal deeds which are incompatible with his/her job position, until the court sentence becomes binding”.

In support of the raised constitutional challenge it was asserted that, in a nutshell, the above-mentioned legal provisions are unconstitutional because they are precluding the constitutional provisions setting forth the benefit of the doubt, the right to work, the right to a decent life, and also the constitutional provisions regarding the limitation of certain rights and liberties and the provisions regarding the fight against discrimination.

When examining the constitutional challenge, the Court ruled that art. 52 para. (1) letter b) of the Labour Code was challenged for a constitutional review in the past for critiques similar with the ones raised in this case, and the Court established that these legal provisions are constitutional in regard to the Constitutional provisions setting forth the benefit of the doubt, the right to work and the equality of rights.

The Court notes that through these prior decisions was not made a distinction between the two hypothesis of art. 52 para. (1) letter b), respectively the first hypothesis, regarding the suspension of the individual labour contract as a consequence of the criminal complaint filed by the employer against the employee, and the second hypothesis, regarding the situation in which the employee was committed to trial for criminal deeds which are incompatible with his/hers job position.

As regards the first hypothesis of the above-mentioned article, the Court assesses that, when deciding to suspend the employee’s individual labour contract, the employer does not decide if the employee is guilty or innocent or regarding the employee’s criminal liability, these being issues which have to be settled by the judicial bodies. Also, the Court considers that the critiques regarding the equality of rights cannot be held, because the legislator is free to establish different conditions regarding the suspension of the work relationship, the suspension of the activity, job position or service relationship, if different socio-professional categories which are not in comparable situations are envisaged. Also, the Court assesses that the critiques regarding the breach of the constitutional provisions setting forth the right to a decent life are groundless, given the fact that the suspended employee is not hindered to work during the suspension in a different workplace in order to ensure his/hers necessary income.

On the other hand, as regards the problem of complying the analyzed legal provisions with the constitutional provisions regarding the right to work, the Court notes that this measure represents a restriction, and, by conducting a proportionality test, the Court will analyze if the constitutional requirements regarding the limitation of certain rights and liberties are fulfilled. Following such test, the Court establishes that the suspension of the individual labour contract as a consequence of the criminal complaint filed by the employer against the employee does not fulfill the proportionality requirement, this measure being excessive in relation to the purpose that has to be reached, thus the provisions of art. 52 para (1) letter b) first hypothesis of the Labour Code are unconstitutional.

As regards the second hypothesis of the above-mentioned article, the Court notices that this was the object of a distinct examination, and was declared constitutional in regard to the critiques, through Decision no. 81 dated February 26, 2015, published within the Official Gazette no. 273 dated April 23, 2015 so, as a consequence, the challenge was rejected for being inadmissible as regards this hypothesis.

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