53. Concediere lider de sindicat – nulitate clauză contract colectiv de muncă prin prisma aplicării Deciziei Curţii Constituţionale nr. 814 din 24.11.2015
53. Dismissal of union leader – nullity of the collective labor contract clause in view of the application of the Decision of the Constitutional Court no. 814 of 24 November 2015

Summary/Abstract: Regarding the legal issue to be resolved in the case, respectively if it is possible to dismiss the union leaders and what are the cases in which such a measure can be ordered, the Constitutional Court of Romania ruled in Decision no. 814 of 24 November 2015. In the present case, it is found that such an absolute prohibition of dismissal is inserted in Article 135 paragraph 2 of the collective labor contract at the level of the defendant company, the dismissal being prohibited without the prior consent of the union management. It should be emphasized that the prohibition applies to all cases of dismissal, including when it is the result of a disciplinary misdemeanor (unjustified absences etc.). Also, the agreement of the union management depends exclusively on its own will (si voluero) without establishing other objective criteria for application, which leads to restricting the employer's right to organize its work internally, by limiting the right to dismiss – even under the strict conditions provided by law – thus representing a limitation of economic activity, by affecting the employer's prerogative to decide on the organization of its activity in the unit. The limitation is all the more obvious in the case of termination of employment, in which the managerial decision conferred by law on certain persons is subject to censorship by the governing bodies of the union, exceeding the legal framework establishing the rights and obligations of these unions. The possibility of the court of law to find incidentally the illegality of a contractual clause was ruled by Decision no. 17/13 June 2016 the High Court of Cassation and Justice Panel for resolving legal issues. Consequently, the Court finds that said clause of the collective labor contract (Article 135 paragraph 2) violates mandatory provisions for the courts, contained in the above mentioned decision of the Romanian Constitutional Court, consequently the court will deprive the clause of legal effects and exempt the employer from the obligation to execute such an illegal condition.

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