9. Consiliul Naţional pentru Combaterea Discriminării. Constatarea existenţei unei fapte de discriminare în legătură cu aplicarea prevederilor art. 25 din O.U.G. nr. 111/2010
9. National Council for Combating Discrimination. Acknowledging the existence of a deed in relation with the application of the provisions in art. 25 of G.E.O. no. 111/2010

Summary/Abstract: 1. CNCD, pursuant the investigation carried out and the adoption of the Decision no. 31 of 30 January 2013, ruled on the work relations between the employer and the employee, the scope and rights regulated through G.E.O. no. 111/2010, though the authority did not refer to the lawfulness/unlawfulness of the Decision no. 61 of 11 June 2012 through which the employment agreement of the appellant-defendant was terminated, but it simply identified the existence/inexistence of the discrimination act in connection to which it had been notified. In this context, the appeal court has appreciated that the fact that CNCD referred/related to the provisions in art. 25 para (2), (3), and (4) of G.E.O. no. 111/2010 to crayon/set the standing of the appellant defendant, i.e. that of a woman in the legal situation of protection after the maternal leave, concerning which it had been notified to rule on the existence of a form of discrimination, pursuant to G.O. no. 137/2000, was justified, so that it did not exceed/ infringe the legal limitation of the competency granted by the legislator to this authority, the purpose for which it has been set up being to investigate, acknowledge, and sanction discrimination acts. 2. Considering that the fact that the employee was on a maternal leave during the reference period is not challenged, the issue of the employment agreement termination decision during this period leads to the application of the provisions in art. 25 para (2) letter a) of G.E.O. no. 111/2010, according to which „it is forbidden that the employer orders the termination of the work or employment relations in the case of the employee who is, as applicable, on a parental leave for the raising of the child up to one or 2 years of age, respectively 3 years of age, in the case of disabled children”. Thus, the administrative authority has fully lawfully ruled that the appellant-defendant held a special standing at the respective date, which is why she was not in a situation similar to that of other laid-off employees. Or, in its case law, ECHR has ruled that „the right not to be discriminated (…) is infringed not only when governments apply differentiated treatments, but also when the governments fail to apply a differentiated treatment, without objective and reasonable grounds, for persons in different situations, that cannot be compared” (Thlimmenos vs. Greece of 6 April 2000), and, in the case of the appellant-defendant, the very legislator has regulated a special treatment, a positive discrimination, during the 6 months referred to in art. 25 para (3) of G.E.O. no. 111/2010.

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