Sun | 17.07.2016
The suspension of the employment contract is a topical issue, not just due to its importance in the relationship between employers and employees, but also because it was recently subject to several legislative changes/compulsory interpretations of the Constitutional Court and of the High Court of Cassation and Justice. Some of these changes protect employees. Hereinafter you can find a brief presentation of some of these new approaches to the suspension of employment contracts.
In accordance with the law, the suspension of an employee’s individual employment contract can occur by operation of the law (in certain cases provided by the law, such as medical leave, maternity leave), at the employee’s initiative (for example, parental leave, paternal leave, professional training leave) or at the employer’s
Currently, there is a new trend to reduce the number of cases when employees may decide/initiate the suspension of an employee’s employment agreement.
A first change of the legal regime applicable to the suspension of an employment contract was performed last year, by Ruling no. 279/2015 of the Constitutional Court.
Thus, the Labor Code provided that the employer could suspend an employee’s employment contract if the employer had made a criminal complaint against the employee (this provision had been in force since 2003). By the abovementioned ruling, the Constitutional Court established that the said provision of the Labor Code is unconstitutional. Therefore, it is no longer in force since August 2nd, 2015.
A second change was introduced this year, by a new ruling of the Constitutional Court. It ruled that the employer’s right to suspend an employee’s employment contract during a disciplinary inquiry initiated against the latter is unconstitutional.
Thus, by the ruling rendered on May 5th, 2016, the legal provision establishing this right in favor of the employer was declared unconstitutional (the said provision had been in force since 2003). The Constitutional Court’s ruling was not yet published in the Official Journal. After its publishing, the abovementioned provision will be suspended and, within 45 days from its publishing it will cease to operate.
Another change consists of the introduction of a new case when an employment contract can be suspended at the employee’s initiative, namely for the “adoption leave” granted to an adopting parent, as per Law no. 57/2016, which amends the child adoption regime. Attention: this provision will enter into force on August 12, 2016.
Moreover, in accordance with the Labor Code, the use of more than 5 persons for labor purposes without concluding individual employment contracts as provided by the law (article 16 of the Labor Code) is an offence and is punished by a fine between 10,000 and 20,000 Lei for each person.
A recent ruling of the High Court of Cassation and Justice (no. 20/2016) stated that working while the employment contract is suspended also represents undeclared work.
Therefore, even if the concerned person has concluded an employment contract with the employer, taking into account that during this time his/her employment contract is suspended, there is no legal title based on which the said person can work.
We hope you found this information useful!
GRUIA DUFAUT Law Office
Note: Information in this article is not legal advice. This article provides general information, based on existing laws on the day of its publication. All steps to take or not take action should rely not on this information, but on specific legal advice.