The Suspension of a Labor Contract, Unconstitutional in Case of Penal Complaint - Your strategic HR partner - Smartree

The Suspension of a Labor Contract, Unconstitutional in Case of Penal Complaint

Suspension of a labor contractThe individual labor contract can be suspended at the initiative of the employer (…) if the employer has expressed a penal complaint against the employee, according to Article 52, paragraph 1, letter b of the Labor Code.

The Constitutional Court of Romania (CCR) declared unconstitutional this part of Article 52 of the Labor Code and the new regulations come into force today, following the publication of this Court decision in the Official Gazette, Part I, no. 431 of June 17, 2015.

The employer has no such right to suspend the individual employment contract of an employee when formulating a penal complaint against him. The CCR considered the measure in the Labor Code as unconstitutional.

In the CCR's decision no. 279/2015, the following is specified:

"The Court finds that (…) the suspension of a labor contract as a result of formulating a penal complaint against the employee by the employer does not meet the condition of the 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 sentence of Law no. 53/2003 are unconstitutional. "

The provision of the Labor Code declared unconstitutional will be suspended for 45 days from the publication of the CCR decision in the Official Gazette, according to the Constitution, so it will no longer be applicable. Its legal effects are permanently ceased if, during the 45 days, the Parliament or the Government will not put in concordance the unconstitutional provision with the provisions of the Constitution.

When the employer can have the initiative of the suspension of a labor contract

The employer may take the initiative of the suspension of a labor contract in these situations, stipulated by the Labor Code, except the previously aspect, declared unconstitutional:

  • during the preliminary disciplinary research;
  • the employee has been prosecuted for penal offenses incompatible with his position, until a final court decision;
  • in case of interruption or temporary reduction of the activity without termination of employment, for economic, technological, structural or similar reasons;
  • when the extent of judicial control or judicial control on bail was taken against the employee, under the Criminal Procedure Code, if obligations were established which prevents performance of the labor contract and if the employee is home arrested and the measure
  • content prevents the execution of the labor contract;
  • during detachment;
  • during the suspension by the authorities of the permits, licenses or certificates required for the professions.

 

During the suspension, the employee shall have all rights and obligations of the individual labor contract, of the internal regulation, the applicable collective labor agreement and the special laws, except for salary rights.

This exception means that the employer does not pay social security contributions, except when the suspension is due to discontinuation or reduction of temporary activity. In this case, the employee shall receive compensation from the employer that cannot be less than 75% of base salary, according to Article 53 of the Labor Code.

You could also be interested in:

Infographic: The Evolution of Minimum Gross Salary in Romania

The Weekly Rest, New Clarification in the Labor Code

Termination Decision for Suspension of Employment

Leave a Comment

Request an offer!

Newsletter

Subscribe to the Smartree newsletter to keep you updated with all the latest HR news
I agree to the processing of the e-mail address only for the provision of the Newsletter service, in accordance with the Privacy Policy.

Partnerships

ADP and the ADP logo are registered trademarks of ADP, LLC.

About ADP (NASDAQ – ADP) Designing better ways to work through cutting-edge products, premium services and exceptional experiences that enable people to reach their full potential. HR, Talent, Benefits, Payroll and Compliance informed by data and designed for people. Learn more at www.adp.com.
Smartree is proud to be a local payroll partner of ADP in Romania.

Memberships

Certificates