Bad faith of employees in actual labour law-theoretical and practical implications

• Author: Stefania-Alina Dumitrache
• Position: Assistant professor
• Pages: 184-192

BAD FAITH OF EMPLOYEES IN ACTUAL LABOUR LAW-

THEORETICAL AND PRACTICAL IMPLICATIONS

Assistant professor Ştefania-Alina DUMITRACHE

1

Abstract

In designing the study we started with the a nalysis of good faith in employment la w, from Article 54 of the

Romanian Constitution and reaching to Article 8 of the Labour Code. Regarding the bad faith of the employee, it

exceeds the scope of abuse of law and must be addr essed in rela tion to the three main stages of any individual labour

contract. Thus, when negotiations for a la bour contract, ba d faith of an employee can occur by brea ching of private

information disclosed by the employer and by violating the correla tive obligation to employer's right to correct

information. In disciplinary matters, the form of guilt of the employee who commits a disciplinary offense and his

failure to appea r at prior disciplinar y investigation to which he was called ar e important for the a nalyzed issues. Not

even termination of a n individual la bour contract is protected from the event of adopting a malicious behaviour by

the employees. The study concludes with launching the opinion that a way to pr event and control this type of

behaviour could be the employee's personnel file.

Keywords: good faith, bad faith, abuse of rights, labour, employer, employee

JEL Classification: K31

Good faith is a legal goal which finds its essence in the very text of Article 54 of the

Romanian Constitution, according to which Romanian citizens, foreign citizens and stateless

persons shall exercise their rights and liberties in good faith, without infringing the rights and

freedoms of others. Romanian legislator does not refute the taken position, so establishes good

faith as a principle of civil law in Article 14 paragraph 1 of the Romanian Civil Code

2

, and of

labour law as shown in Article 8 of the Labour Code

3

. Under this last legal text labour relations

are based on consensus principle and good faith.

To approach the subject of our study, we resort to a simple logical reasoning whereby

opposite of good faith cannot be other than bad faith. In the juridical literature

4

it is considered

that where good faith ceases it breaks through the bad faith because it begin, where appropriate,

fraud, violence, evasion of law or abuse of rights, the last one representing the exercise of a

subjective right by violating the principles of its exercise

5

. Some authors

6

consider that the legal

institution of abuse of rights is intended not only to ensure inviolability of ge neral interest, but

also to remove selfishness in exercise of subjective rights harmonizing it with economic and

moral demands of society.

1

Ştefania-Alina Dumitrache, Police Academy „Alexandru Ioan Cuza”, Bucharest, stefania.dumitrache@academiadepolitie.ro

2

Law no 287/2009 on t he Civil Code was republished in the Official Gazette of Romania, Part I, no 505 of July 15, 2011 under

Article 218 of Law no 71/2011 for implementation of the Law on the Civil Code no 287/2009 published in the Official Gazette of

Romania, Part I, no 409 of June 10, 2011. According to the text cited any natural or legal person must exercise their r ights and

perform their civil obligations in good faith, in accor dance with public order a nd good morals. Good faith is presumed until

proven otherwise.

3

Law no 53/2003 - Labour Code was republished in the Official Gazette of Romania, Part I, no 345 of May 18, 2011 pursuant to

Article V of t he Law no 40/2011 amending and supplementing Law no 53/2003 published in the Official Gazette of Romania,

Part I, no 225 of March 31, 2011, the texts being renumbered.

4

Ion Traian Ştefnescu, Theoretical a n practical trea ty of labour law, Universul Juridic Publishing House, Bucharest, 2010, page

79.

5

See Gheorghe Beleiu,Romanian civil la w.Introduction in civil law study.Subjects of civil la w,The XI th Edition revised and

enlarged by Marian Nicolae and Petric Truşc, Universul Juridic Publishing House, Bucharest, 2007, page 87.

6

Ernest Lupan, Ioan Sabu-Pop, Romanian civil law treaty. Volume I. General part, C.H.Beck Publishing House, Bucharest,

2006, page117.