Exception of unconstitutionality regarding the Labor Code

The Cluj Court of Appeals has admitted a referral of the Romanian Constitutional Court related to the exception of unconstitutionality raised by MAXIM/ ASSOCIATES regarding the previsions of the second sentence of article 52 first paragraph lit. b) of the Romanian Labor Code.

On 20.05.2020, we obtained the referral to the Constitutional Court regarding Article 52 paragraph 1 (b), the second sentence of the Labor Code.

The aforementioned legal provision refers to the possibility for the employer to suspend the employee's individual employment contract if the employee has been sued for criminal acts incompatible with his position.

By way of wording, the text does not provide adequate protection for employees, while opening up the possibility of arbitrary and inconsistent interpretations that would result in a non-unified judicial practice.

The importance of the intervention of the Constitutional Court with regard to the legal provisions which are the subject of the referral is all the more relevant since, de facto, the decision to suspend the individual employment contract has similar effects to the dismissal decision.

Through this exception, the unconstitutionality of the article in question was raised based on a number of new considerations, on which the Court has not been referred in the past:

• Contrary to the purpose of the legal provision and contrary to the principle of legal certainty, in this form, the text of the second sentence of art. 52 paragraph 1 lit. b) of the Romanian Labor Code evokes an extremely high degree of uncertainty, both in relation to the time and manner in which the suspension decision may be taken, but also in relation to the time in which the suspension measure must or can be maintained by the employer.
• Under the provisions of Article 52 (1) (b), the second thesis of the Romanian Labor Code: The employer is presently authorized to issue a suspension decision without considering an objective time frame in which such decision should be issued, such as a certain time limit from the date of legal proceedings or from the employer's knowledge of the referral of his employee to criminal court/authorities.
• Based on the provisions of the second sentence of art. 52 paragraph 1 lit. b) of the Romanian Labor Code, apparently, the employer is not required in any way to substantiate the decision issued on the basis of this legal ground.
• Moreover, following the application of the suspension measure, the employee has no recognized legal prerogative to request and the employer has no legal power to order the resumption of the previously suspended employment relationship, even if the reasons that determined the suspension In the first place no longer exist.