Over time there have been many controversies about whether to revoke the employer’s decision to dismiss. But since October, by a decision of the High Court of Cassation and Justice (HCCJ), discussions on this issue were limited. Thus, the employer has the right to withdraw a decision to dismiss just before its effective communication to the employee.
Thus, according to Art. 55 c) of Law no. 53 of 2003 on the Labor Code, republished, it has been stipulated that “the individual labor contract can be terminated as a result of the unilateral will of one of the parties, in the cases and under the conditions provided for by law.” Taking into account the provisions of Article 77 of the Labor Code, republished, it follows that “the dismissal decision takes effect from the date of its communication to the employee” and according to art. 278 par. (1) of the Labor code “the provisions of this code shall be completed by the other provisions of the labor law and, if they are not compatible with the specific labor relations provided by this code, by the provisions of the civil law “.
In this way, both employers and employees are protected from possible misunderstandings that could get in court, causing inconveniences for both sides. In addition, under the new HCCJ decision, after the dismissal decision has produced its effects – when it was communicated to the employee – the revocation of the dismissal decision could no longer legal effect, requiring mutual consent for a new collaboration.
Basically, the employer and the employee, who already received the dismissal decision, can reach an agreement regarding the continuation of its activity at work, but only under a new labor contract and, in no circumstances, under the labor contract which was ended. If this is not respected, it might be considered that the employee actually works “black” and he can be penalized.
As the quotations from the law shown, the High Court of Cassation and Justice decision has also provided that the dismissal decision is a unilateral act, released by the employer, in which he manifests, in the conditions stipulated in the Labor Code, the will to put end a labor contract with one of its employees. According to the law, “dismissal decision takes effect from the moment of its communication”.
The Article 278 para. (1) of the Labor Code also stipulates that “The provisions of this Code shall be completed by the other provisions contained in the labor legislation and, in case they are incompatible with the specific labor relations provided in this Code, by the provisions of the civil law”. In other words, the rules of the labor law, as special rules, are complemented by the rules of civil law, as a general rule. Besides, in case of dismissal decision – an legal unilateral act, there is no express exemption from the common law regime of such acts.
Regarding dismissal, this represents the individual labor contract termination, the employer’s initiative and, as it can be seen from the above, a unilateral act of the employer. Dismissal may be ordered for reasons related to the employee or not. Precisely for this reason, the dismissal decision is different from the act of resignation by the fact that the employer is obliged to motivate the dismissal decision, while the employee does not need to motivate the will to resign.
Consequently, the High Court of Justice states that in interpreting and applying the provisions of the Labor Code, republished with subsequent amendments, the provisions of the Civil Code, republished, can be applied in completing the Labor Code provisions, being compatible with the specifics of legal work .
Also, the High Court of Cassation and Justice states that “the dismissal decision may be revoked before its communication to the employee, the act of revocation being subject to the requirements of the communication required to be used in the act of dismissal (decision of dismissal).”