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The 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.
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 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.
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