Background

Last year, the Constitutional Court of Romania ruled that the provisions of article 52 paragraph (1), letter (a) of the Romanian Labor Code, regarding the possibility to suspend the individual labor agreement at the employer’s initiative, during the disciplinary investigation, are unconstitutional.

When examining the constitutional challenge, the Court argued that the provisions of the mentioned article intended to protect the patrimonial and non-patrimonial rights of the employer, with the main purpose to prevent the expansion of the consequences of the employee`s misconduct, in order not to affect the employer’s current activity, until the existence and severity of employee’s misbehavior or, on the contrary, his innocence was established with certainty.

The analysis of the Court had as principal element the review of the proportional character between the employer’s rights and interest and the employee’s rights and interest during the labor relationship.

In this regard, the Court had to rule between the provisions of article no. 45 of the Romanian Constitution related to the economic freedom, which requires, among other things, the employer’s right to assume any necessary measures for the proper conduct of his business and, on the other hand, article no. 41, paragraph (1), related to the right of work.

Impact on business and labor relations

  • the employer has no legal remedies for asking the employee who is under disciplinary inquiry to stay outside the employer`s premises, during the disciplinary investigation;
  • in the pending cases having as object the ascertaining by the employee of the employer’s decision to suspend the individual labor agreement during the disciplinary inquiry, issued prior to the Court decision, the employees will invoke the provisions of the Court’s decision. The practice of the Romanian courts is the annulment of the employer`s decision of suspension issued prior to the Court decision.
  • in practice, it has been observed that the disciplinary inquiries are directly influenced by the presence of the employee at the labor place, which may alter the evidence system by his having access to the employer’s documents, his possibility to interconnect with the key personnel etc.

Remedies

The decision has as principal effect the impossibility of the application of the legal provision, but it leaves open the employer’s possibility to establish contractual remedies. In this regard, at the moment of the conclusion of the individual labor agreement or subsequently, by the conclusion of the addenda, the parties may agree on a clause regarding the possibility of suspension of the agreement at the employer’s initiative through the disciplinary investigation. The parties may also agree that the employee receive an indemnity lower or equal to the monthly salary, for all the suspension period.

There is practical reticence on the part of the Romanian competent authorities to accept the solution of a clause of the individual labor agreement that can confer the employer the right to ask the employee not to be present at work during his disciplinary investigation.

Legal doctrine states that such article may be interpreted as a circumvention of the constitutional provisions. Our assessment is that such provision is permitted by the possibility to suspend the individual labor agreement through the parties’ consent.

Lex ferenda Proposal

Even if the Romanian Constitutional Court declared unconstitutional article 52 paragraph (1), letter (a) of the Romanian Labor Code, we consider that the Romanian legislator shall regulate the juridical situation of the suspension of the individual labor agreement throughout the disciplinary inquiry in such a manner so as not to affect both the employee’s and the employer’s rights.

Such articles may have the following content “Individual labor agreements may be suspended at the employer’s initiative throughout the disciplinary inquiry, without any prejudice to the employee’s remuneration rights.” or “Any employer may restrict the access of the employee under the disciplinary inquiry to some systems, information, spaces or projects in connection with the disciplinary inquiry.”

Such provision would allow the employer to conduct the disciplinary inquiry without being affected by the presence of the employee at work, and, at the same time, the employee’s rights will be protected. Thus, the condition of the proportional character, requested by the Constitutional Court, will be met.