Theoretical and practical considerations on probation in labor disputes

• Author: Marioara Tichindelean
• Position: University of Sibiu
• Pages: 259-270

Theoretical and practical considerations on probation in labor disputes

1

Associate professor Marioara ȚICHINDELEAN

2

Abstrac t

Having the act ori incu bit onu s proban di apot hegm as a starting point, we shall

examine the pa rticular a spects of probation in work -related con flicts, as sti pulated in the

272-273 Article with in the 53 /2003 Law regarding The Labour Cod e and 212 Article wit hin

62/2 011 Law on Soc ial Dialog ue. The objective of thi s pape r is to examin e distinct feat ures

related to the funct ions of evidence , to the set of fundament al principl es which unde rlie the

judicia l proceedi ngs of probat ion in work -related co nflicts, as well as th e active role of the

judge in order to assu re a righteo us an d fair trial. All the el ements referre d t o wil l be

regarde d from historical , hermeneutic, teleolo gical a nd compara tive poi nts of vie w. The

specific cha racter of regulatio ns underpinn ing the manag ement proc edures re garding

proba tion in work -related con flicts, differing from the provi sions u nder statuto ry law,

high lights t he legisl ator's cho ice towa rds establi shing a simple an d urgent procedure . It

shoul d be ad justed to the work terms and to the individu al right to wo rk, represen ting a

genui ne gua rantee for b ringing the law clai ms which derive fro m adequ ate or inad equate

performance of i ndividua l or collec tive c ontracts, performed b y the e mploye r. Exampl es

provid ed by judici al pra ctice uncloak the d ifficult ies encoun tered by both p arties of t he

trial and court when i t comes to enforcing th e specific prov isions for the app lication o f the

legisl ation, fact wh ich i s not alwa ys compa tible with the legislature ’s aim, b y means o f

regula tion.

Keywords: labor d isputes, social dial ogue, labor la w, burden of proof .

JEL Cla ssification: K31, K41

1. Introductory remarks

From adagio actori incubit onus probandi, in the following we refer the

particular aspects of evidence in labor disputes in terms of the provisions of the

Law art.271-273 No. 53/2003 on the Labour Code and art.212 Law No.62 / 2011

on social dialogue.

This study examines from a historical perspective, hermeneutics,

teleological and comparative aspects concerning the burden of proof, the principles

underlying the legal procedure of proof in labor disputes, as well as the judge's

active role in ensuring a fair trial.

1

This art icle w as submitt ed to 6th International Conference “Perspectives of Business Law in the

Third M illennium”, 25 -26 November 2016, t he Bucharest University of Economic Studies,

Bucharest, Romania.

2

Marioara Țichindelean - ”Lucian Blaga” University of Sibiu, tmsib@yahoo.com