institution authority or professional Archives - Pavel, Margarit and Associates

The Court finds that the provisions of art. 52 paragraph (1) letter b) of Law No. 53/2003 require a separate analysis of the two theses contained, the causes for the suspension of the individual labor contract being obviously different. This distinct examination has been detained also by Decision No. 81 of 26 February 2015 published in the Official Gazette of Romania, Part I, No. 273 of 23 April 2015, through which the Court found as constitutional art. 52 paragraph (1) letter b) second theses of Law No. 53/2003, because only this thesis was applicable in the dispute in which it was invoked the unconstitutionality of the provisions of art. 52 paragraph (1) letter b) of Law no. 53/2003. Analyzing the provisions of art. 52 paragraph (1) letter b) first thesis of Law no. 53/2003, the Court noted that the initiative of individual labor contract suspension is left in this legal hypothesis completely to the disposal of the employer, the one who formulates the preliminary complaint and decides, at the same time, the suspension of the employment relationship. Of course, as it has been detained in the constitutional jurisprudence, the suspension of the employment relationship does not mean a violation of the presumption of innocence. Although in its case-law the European Court of Human Rights held that the principle of presumption of innocence enshrined in art. 6 § 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms is not limited to a mere procedural guarantee in criminal matters, its scope of application being broader and imposing that no representative of the State or public authority not to declare a person as guilty of a crime, before its guilt has been established by a "court" (decision of 4 June 2013 in Case Teodor against Romania, paragraph 36), the Constitutional Court further considers, in agreement with those retained by Decision no. 24 of 22 January 2003 that, having suspended the contract of employment, the employer does not pronounce on the guilt or innocence of the employee, nor on its criminal liability, these being matters whose settlement enters within the scope of the activity of judicial bodies. Also, it cannot be said that this measure could be equated with what the European court understands as criminal guilt filed by a "representative of the State or a public authority", before the pronouncement of court. Finally, the Court notes that the suspension of the individual labor contract analyzed does not take the form of a criminal sanction, nor even that of a disciplinary sanction. As for the proportionality of the measure covered by art. 52 paragraph (1) letter b) first thesis of Law no. 53/2003, respectively of achieving a fair balance between the rights in competition, namely the right to work and the employer's right to take the necessary measures for a good development of the economic activity, the Court notes that the suspension of the individual labor contract, at the employer's initiative, when there are grounds for appreciating that the illicit activity of the employee would jeopardize the interests of the employer, must submit to certain conditions to ensure that this measure is not arbitrary. In other words, the Court considers that, to the extent that the law provides to the employer the possibility to suspend the individual labor contract in order to protect its economic interests, as an expression of art. 45 of the Constitution, such a measure, with extensive consequences on employee rights, must be accompanied by a guarantee of objective and duly substantiated decision of the employer. In this regard, the Court notes that the measure of suspension causes the temporary cessation of the obligations of the parties that spring from the individual labor contract, and, in the event of the analyzed text of law, the suspension cause does not operate de iure, nor is it an expression of the will of the employee, but of the employer. Moreover, the Court notes that, unlike other socio-professional situation, when the suspension operates as a result of the criminal action and / or prosecuting acts ordered by the magistrates, having an objective, extrinsic relation between one that operates the professional activity and the institution, authority or professional body of which the employee is part of, the suspension of the labor contract in the assumption art. 52 paragraph (1) letter b) first thesis of Law no. 53/2003 may be ordered by the employer as a result of all criminal complaint that he made against the employee, depending on his own will, alike, the cause of suspension of the labor contract and enforcing this measure. In these circumstances, the Court considers that the guarantees of objectivity and rationality of the decision to suspend decided by the employer may be easily questioned, since art. 52 paragraph (1) letter b) first thesis of Law no. 53/2003 leaves the assessment of the suspension basis, entirely at the disposal of the employer whose decisions are likely to be regarded as subjective and sometimes even abusive, particularly in the context of contractual relations work which, by their nature, involves a significant human interaction. Thus, it should not be overlooked that these ratios imply a subordination of the employee against the employer, characterized by the performance of a work under the authority of the employer, who has the duty to give orders and directives, to control the supply of labor and to sanction the violations committed by the employee. Thus, the Court finds that after the test of proportionality on the measures of restriction of the right to work, suspension of individual labor contract as a result of formulating a criminal complaint against the employee by the employer does not meet the condition of proportional character, the measure being excessive in relation to the objective to be achieved, so that the provisions of art. 52 paragraph (1) letter b) first thesis of Law no. 53/2003 are unconstitutional.

Tag institution authority or professional

The provisions of art. 52 paragraph (1) letter b) of the Labor Code declared unconstitutional. Decision of the Constitutional Court