Brief legal details about the dismissal that does not belong to the employee
In accordance with Article 65 of the Labour Law, dismissal for reasons not concerning the employee is the termination of the individual employment contract determined by the termination of the employee’s work position, for one or more reasons unrelated to the employee.
The termination of the work position must effectively take place and have a real and serious cause
The measure of dismissal is legal, in the context of these dispositions, only as long as it cumulatively fulfills the stipulated conditions regarding the effectiveness, the real and serious cause.
- the cause is real when it is objective, i.e. it really exists and does not conceal reality
- the case is serious where the measure taken by the employer does not conceal reality, i.e. it is intended exclusively to improve the activity and not a dismissal which would be determined by the person of the employee
- the termination of employment shall be effective when the workplace is removed from the employer’s structure, when it is no longer found in the employer’s organisation chart
The absence of these conditions at the time of dismissal of an employee leads to the annulment of the dismissal decision by the court
In the case of dismissal for reasons not related to the employee, the employer shall have the right to take all measures which he considers necessary, including that of the termination of work posts, where the cause of such measures is to adapt the activity of the company he holds to economic realities.
It is also possible to terminate several work posts of the same kind and, however, that collective dismissal cannot be said of the number of posts covered by the dismissal measure.
From the analysis of the dispositions of Article 65, paragraph (1) of the Labour Code, we can observe that the legal text excludes the possibility that when the employment of the employee is terminated, the professional skills of employee occupying identical positions may be taken into account.
The correct application of the dispositions of Article 65 of the Labour Code does not give the possibility of a professional selection between employees, since the purpose of dismissal which does not belong to the employee, is to allow the recovery of the company as a result of the reorganization and the overriding of the economic difficulties that have led to the reorganization.
Thus, the employer is the only one entitled to establish the organization and functioning of the unit, specifically the efficient organization of internal structures as well as the selection of those work posts that will be terminated, if he considers that this measure leads to the increased efficiency of the activities.
Lawyer at R&R Partners Bucharest
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