17. Constatarea nulităţii clauzei din contractul individual de muncă referitoare la durata determinată a acestuia. Prescripţia dreptului de a solicita constatarea nulităţii clauzei
17. Establishment of the nullity of the clause in the individual employment contract concerning its fixed term. Limitation of the right to seek a declaration of nullity of the clause

Summary/Abstract: Article 268(1)(d) of the Labour Code lays down the rule that an application to establish the nullity of an individual or collective employment contract, or of any of its clauses, is admissible throughout the existence of the contract. However, the above legal provision must be interpreted in light of the reasoning of the Supreme Court in the decision referred to above (Decision No. 17 of 13 June 2016, published in Official Gazette No. 993 of 9 December 2016), in the sense that the nullity of a clause in an individual employment contract may be invoked as long as the parties may rely on the legal effects generated by the performance or non performance of that clause. (...) in this case, the very clause concerning the fixed term of the individual employment contract is the basis taken into account by the employer when issuing the decision to terminate the contract, a decision that is challenged in these proceedings. In other words, the issuance of the decision to terminate the individual employment contract is a legal effect of the clause regarding its fixed term, the employer having considered that the term had expired, a situation which is, however, disputed by the employee. Since the employee’s request to annul the decision to terminate the employment contract is based, among other things, on the invalidity of this clause, it is fully admissible to examine the grounds of nullity, and the plea of limitation cannot be raised against them.

• Details
• Contents