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Suspending the employment contract, upon the employer’s initiative, throughout the disciplinary inquiry – declared unconstitutional

Romanian Constitutional Court ruled that the measure of having an employment contract suspended, upon the employer’s initiative, throughout the disciplinary inquiry, is a disproportionate containment of the right to work, guaranteed by Article 41 paragraph (1) of the Romanian Constitution.

1. Employers’ decisions to suspend employment – susceptible of subjectivity

On 5 May 2016, the Romanian Constitutional Court (“RCC”), unanimously ruled in favor of admitting the objection of unconstitutionality raised in the Court File No. 1778D/2015 (linked up with the Court File No. 157D/2016), ongoing in front of Brăila Tribunal, and adjudicated that the provisions of Article 52 paragraph (1) letter a) of the Romanian Labour Code are unconstitutional.

The arguments upheld by the Plenary of the RCC on 5 May 2016 will be detailed within the content of the decision that follows to be published in the Official Gazette of Romania, Part I..

We hereby outline that RCC, following the same pattern, ruled in its Decision No. 279 dated 23 April 2015, that the provisions of Article 52 paragraph (1) letter b) first thesis of the Romanian Labour Code are unconstitutional. We hereby refer to the legal provision according to which any employer may suspend the employment in case it had filed a criminal complaint against the said employee. In construing its reasoning, RCC upheld that the suspension of employment in the given situation is a containment of the right to work, as per the provisions of Article 53 paragraph (1) of the Romanian Constitution. Further to implementing the proportionality test with respect to the containment of the right to work, RCC concluded that the suspension of employment as a result of a criminal complaint filed by the employer against the employee does not meet the proportionality condition, the measure itself being excessive in relation to the objective considered, thus concluding that the provisions of Article 52 paragraph (1) letter b) first thesis of the Romanian Labour Code are unconstitutional.

Specifically, RCC upheld that, as opposed other socio-professional categories, when the suspension operates as a result of the initiation of the criminal action and/or of the initiation of the criminal file in front of the court of law, deeds which are ordered by magistrates, having an objective character, not-related to the relationship existing between the professional activity carried out and the authority, institution or the professional body concerned, the suspension of employment based on the provisions of Article 52 paragraph (1) letter b) first thesis of the Romanian Labour Code is a discretionary act, considering the fact that the employer prevails itself from the above based on its own deed (the criminal complaint that it initiates against the employee). Under these circumstances, RCC assessed that the objectivity and the trustworthiness guarantees of the employment suspension decision may be questionable, as long as the provisions of Article 52 paragraph (1) letter b) first thesis of the Romanian Labour Code leaves room to the employer to decide the legal ground of suspension. Or, employers’ decisions are susceptible of subjectivity and may be, sometimes, abusive, particularly in the context of employment relationships which, by their nature, imply a significant human interaction.

Most probably, RCC will follow the same line of reasoning with respect to the new ruling. 

2. Analysis of the legal provisions declared unconstitutional

According to the provisions of Article 52 paragraph (1) letter a) of the Romanian Labour Code:

„(1) The individual Labour agreement may be suspended upon the initiative of the employer in the following situations:

a) throughout the disciplinary inquiry, under the terms of the law;

[…]”.

This suspension provision had as target to protect the employer against the risk that the subject employee continues its illicit deeds and, consequently, against the risk that the dangerous consequences of the presumed disciplinary misconduct get extended. Thus, the legislator gave the employer the option to temporary dismiss – by the means of employment suspension – the services of the employee with respect to whom it has sufficient data and information that it might have committed an illicit deed (and which may be qualified as disciplinary misconduct) and in relation to whom it had initiated the disciplinary inquiry. In the end, the solution of the legislator seemed to be a rational panacea granted to employers – who establish the organization and the functioning of the business [Article 40 paragraph (1) letter a) of the Labour Code 

On the other hand, the legislator created sufficient guarantees also to protect the employees, who benefit from the innocence presumption throughout the disciplinary inquiry.

Thus, according to the legislation in force, if – after completing the disciplinary inquiry – it is assessed that the employee is innocent (not guilty), he/she will return to work and will be paid by the employer an indemnification equal to the salary and all the other rights he was entitled to and temporary deprived of (during the employment suspension) [Article 52 paragraph (2) of the Labour Code]. On contrary, if it is assessed that the employee is guilty of committing a disciplinary misconduct, he/she will be irretrievably deprived of the salary corresponding to the employment suspension period. Another guarantee granted under the law to the employee consists in the possibility to challenge in court the employment suspension, the employee thus having the right to defend himself/herself throughout the litigation procedure [Article 211 letter a) of the Social Dialogue Law No. 62/2011].

Or, it seems that RCC considered that these guarantees are not sufficient and cannot be able to confer a „proportionate” character to the containment of the right to work, protected by the Romanian Constitution.

3. Effects of the RCC Decision

The main effect of the RCC Decision is that employers will no longer have the possibility to suspend the employment during the disciplinary inquiry, but they will have to identify alternative solutions in order to be able to continue carrying out their activity even in the presence of the employee who is suspected of having committed a disciplinary misconduct.

In principle, the employer’s disciplinary prerogative is not affected, the employer having the right to apply, in accordance with the law, disciplinary sanctions to its employees each and every time it assesses that they have committed disciplinary  misconducts.

However, out of all the disciplinary sanctions that the employer may apply, only the written warning does not require the completing of the disciplinary inquiry.

All the other disciplinary sanctions may be disposed only after having completed the disciplinary inquiry (the duration of which may vary, depending on the complexity of the illicit deeds and on the circumstances under which such were committed), period during which the employer may no longer dispose the  suspension of the employment agreement of the subject employee. 

4. Application of the RCC Decision

As of the date when the RCC decision will be published with the Official Gazette of Romania, this will be generally binding and effective only for the future. In the next 45 days following the publication date, the legal provisions that were declared unconstitutional, respectively the provisions of Article 52 paragraph (1) letter a) of the Labour Code, will be suspended by law, meaning that they will not be able to be enforced. After the completion of the aforementioned 45 days term, the respective provisions will no longer produce legal effects.

According to Article 147 paragraph (1) of the Romanian Constitution, „ The provisions of the laws and ordinances in force, as well as those of the regulations, which are found to be unconstitutional, shall cease their legal effects within 45 days of the publication of the decision of the Constitutional Court if, in the meantime, the Parliament or the Government, as the case may be, cannot bring into line the unconstitutional provisions with the provisions of the Constitution. For this limited length of time the provisions found to be unconstitutional shall be suspended de jure”.

Also, according to the provisions of Article 147 paragraph (4) of the Romanian Constitution: „ Decisions of the Constitutional Court shall be published in the Official Gazette of Romania. As from their publication, decisions shall be generally binding and effective only for the future.”

In the light of the above, the following 3 temporal benchmarks are of interest:

  • During the period comprised between the publication date of the RCC decision (5 May 2016) and the publication date of the respective decision with the Official Gazette of Romania, the provisions of Article 52 paragraph (1) of the Labour Code will continue to produce their effects as such.
  • As of the date the RCC decision will be published with the Official Gazette of Romania, this will be generally binding and effective only for the future. During the 45 days following the publication date, the legal provisions declared as unconstitutional, respectively the provisions of Article 52 paragraph (1) letter a) of the Labour Code, will be suspended by law, meaning that they will not be applicable.
  • After the completion of the 45 days as of the publication date of the RCC decision with the Official Gazette of Romania, the legal provisions declared as unconstitutional, respectively the provisions of Article 52 paragraph (1) letter a) of the Labour Code, shall cease all their legal effects if, during this period, the legislative authorities did not correlate the legal provisions declared as unconstitutional with the provisions of the Romanian Constitution.

This article was written by  Isabela Delia Popa  and Lidia Lupu.  

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