About the Collective Dismissal of Employees - Practical Aspects

• Author: Radu Razvan Popescu
• Pages: 179-186

The European Citizen and Public Administration

179

About the Collective Dismissal of Employees - Practical Aspects

Radu Răzvan Popescu1

Abstract: The emp loyment relationship is a contractual one and as such must have all the basic elemen ts of

an enforceable contract to make it legally binding. In s trict contr actual ter ms, the offer is made by the

employer and formally accepted by the empl oyee. Once the acceptance h as taken p lace, there is a legal ly

binding agree ment and an action will lie against the party who breaches that agreement, even though it may

only just have come into exi stence. An e mployment contract, however, is unlike most other contracts.

Although th e parties will have negotiated the main terms, we shal l see that a lar ge number of terms will be

implied into th e agreement from all sorts of d ifferent sources and will n ot have been individually neg otiated

by the parties at all. This is what makes an employment contract so different from other con tracts. We think

this article is an important step in the disclosure of the pr oblem erased by th is two concepts.

Keywords: in itiative; consultation; c riteria; compensatory pa yment

According to art. 68 of the Labour Code, by “collective dismissal is understood the dismissal within a period

of 30 calendar days, for one or several reasons not related to the person, of a number of:

- at least 10 employees, if the employer performing the dismissal has more than 20 and

less than 100 employees;

- at least 10% of the employees, if the employer performing the dismissal has at least 100

employees, but less than 300 employees;

- at least 30employees, if the employer performing the dismissal has at least 300

employees.

When determining the actual number of employees collectively dismissed, according to para. (1), in the

calculation are comprised also those employees whose employment contracts were terminated from the

employer’s initiative, for one or several reasons not related to the person of the employee, provided that

there are at least 5 dismissals”.

Hence, when an employer individually fires, within an interval of 30 days, at least 5 employees, this will

be considered as a masked form of collective dismissal, and those employees will be taken into account

when establishing the number of dismissed employees which make a dismissal to be qualified as collective.

In the spirit of Directive 98/59/EC, the Court of Justice of the European Union decided that the concept of

collective dismissal incorporates any termination of the employment contracts not due to the worker’s will

and, hence, without his/her consent2.

1 Associate Professor, National University of Political Studies and Public Administration, Bucharest, Romania, Address:

Expoziției 2 Blvd., Bucharest 012103, Romania, Corresponding author: radupopescu77@yahoo.com.

2 Decision of 12 October 2004, matter C-55/02, Comisia v. Portugal (published in OJEU C 300 of 14 December 2004).