24. Nelegalitatea instituirii unei noi perioade de probă în cazul unui transfer de întreprindere. Imposibilitatea reintegrării şi temeinicia daunelor morale
24. The unlawfulness of the introduction of a new probationary period in the event of a transfer of undertakings. The impossibility of reinstatement and the justification of moral damages

Summary/Abstract: In the case analysed, the Court held that the conditions of Article 4 let. (d) of Law No. 67/2006 on the transfer of undertakings were met, since the decision of the local council ordered the transfer of staff and assets to the new company to continue the original public service activity of managing the municipal cemetery. The fact that it was necessary to conclude new individual employment contracts and that not all employees were taken over is irrelevant. The employee's rights under the individual employment contract should therefore have been maintained. At the time of the transfer, the employee had completed his probationary period with the transferor employer and therefore could not be reinstated. As to the subsidiary claims for reinstatement and payment of material compensation, they are a consequence of the nullity of the decision to terminate the individual employment contract, i.e. the reinstatement of the parties in the position they were in before the annulled act. The question of the subsequent abolition of the post to which reinstatement was ordered shall be considered in the execution of the judgment. As regards the subsidiary claim for payment of moral damages, although the unlawful issuance of the decision to terminate the employment contract causes moral damage, the purpose of awarding moral damages is primarily to obtain moral satisfaction for suffering of the same kind, and not to obtain pecuniary satisfaction. The existence of moral damage does not necessarily require the award of a sum of money, and the admissibility of the appeal may constitute moral compensation sufficient to make good the damage of the same nature.

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