Individual employment contract suspension in case of activity interruption and / or the temporary activity reduction

• Author: Olimpia-Monica Matias
• Pages: 273-279

INDIVIDUAL EMPLOYMENT CONTRACT SUSPENSION IN CASE OF ACTIVITY

INTERRUPTION AND / OR THE TEMPORARY ACTIVITY REDUCTION

PhD Olimpia-Monica MATIAŞ

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Abstract

The economic and financial rea sons determined by the curr ent c risis have imposed to t he Romanian

legislator that, in the flexible r egulatory context concerning the labour reports, has to intervene to reduce the loss.

The legal framework available to the employer in this situation refers to the provisions of the ar t. 52, 1st pa ragraph,

letter c, a rt.52, 3rd pa ragraph, art.53 and 122, 3r d par agraph, all from Law no.40/20111, for Law no.53/2003

modification and amendment concerning the Labour code. Under conditions of economic crisis, it is natura l that

employers have the necessary means to e fficiently organize their activity, meanwhile keeping its staff on these

periods. This does not mean that, dur ing the suspension period the employees can not r esign, no need to ter minate

the suspension provided for in Article 52 line 3 of the Labour Code in or der to intervene in the individual la bor

contract termination. From the employer’s perspective there is no ban imposed to him by art. 60 of the Labour Code

in r elation to this type of suspension, so that the latter may proceed to dismiss the employee during the unilater al

suspension of his labor contract ar ranged under Article 52 line 3 of the Labour Code.

Key words: suspension, activity interr uption and/or the temporary activity reduction, crisis, e mployer, to reduce the

loss

JEL Classification: K31

I. The legal framework available to the employer in this situation refers to the

provisions of the art. 52, 1st paragraph, letter c, art.52, 3rd paragraph, art.53 and 122, 3rd

paragraph, all from Law no.40/20111

2

, for Law no.53/2003 modification and amendment

concerning the Labour code.

1. According to art.52, 1st paragraph, letter c of the Labour Code, the individual

employment contract may be suspended from the employer’s initiative in case of activity

interruption or the temporary reduction, without the employment relationship termination for

economic, technological, structural or similar reasons.

By the Decision no.383.20112

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of the Constitutional Court, the provisions of the art.52,

1st paragraph letter. c from the Law no. 40/2011 were declared constitutional. In explanation, the

Court showed that “these dispositions give to the employer the possibility to suspend the

individual employment contract even in the situation of its temporary activity reduction. Such

reduction is not a pure subjective one, meaning that it will depend entirely on the employer’s

will, but it has to be included in the normative contents context of the criticized text, so that the

employer will be able to suspend the individual employment contract only for an objective

reason, that does not depend on his exclusive will. If, in an objective way, the employer will not

be economically capable to handle the market demands and, although he will reduce his activity,

he will still be forced to pay the staff salaries for the not performed work, would lead to the

situation in which his ownership will be irretrievably damaged”.

In the same way, mutatis mutandis, we have the considerations of the Constitutional

Court Decisions no.1.276 from October 12 2010, published in the Official Journal of Romania,

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Olimpia-Monica Matiaş, Judge at Timis Court, olimpia.matias@yahoo.com

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Published in the Official Journal of Romania, Part I, no. 225 from March 31 2011 for Law no.53/2003 modification and

amendment.

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Published in the Official Journal of Romania, Part I, no. 225 from April 21 2011.