CONSIDERATIONS ON THE IMPORTANCE OF THE PRINCIPLE OF PROPORTIONALITY IN THE CONTEXT OF EMPLOYMENT LAW
CONSIDERATIONS ON THE IMPORTANCE OF THE PRINCIPLE OF PROPORTIONALITY IN THE CONTEXT OF EMPLOYMENT LAW

Summary/Abstract: Art. 40 para. 1 of the Labour Code establishes that the employer has the right to lay down the organization and operation of the unit and to exert control over the performance of each employee’ tasks. This right is called in theory "management prerogative”. By definition, the power of management gives employers a legal ascendancy of power over the employee who has the correlative obligations of subordination and loyalty to the employer. On the other hand, the employee is also a citizen, and thus he is not giving up his rights and fundamental freedoms while at work, in order to “regain” them at the end of the working day. Or, given the prerogative of management being formulated in general terms in the legal text and in addition, the economic dependence of the employee to the employer, it becomes fundamental, in terms of democratic requirements, to answer to the question: how to reconcile the obligation of subordination of employee to his freedom as a citizen? The jurisprudence has shown that the answer to this question is not so simple.This article aims to underline with arguments the fundamental importance that the principle of proportionality acquires in the context of individual employment relations.Key words: employer

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