<strong>2015/31 Constitutional Court, reversing precedent, prohibits suspension pending criminal investigation (RO)</strong>

Summary

Article 52(b) of the Romanian Labour Code allows an employer to suspend an employee against whom it has filed a criminal complaint, without pay. The Constitutional Court, reversing settled case-law, has recently ruled that Articl 52(b) is unconstitutional.

Facts

This case concerns an employer that filed a criminal complaint against two of its employees and then suspended them without pay in accordance with Article 52(b) of the Romanian Labour Code. The judgment does not reveal what the employees were accused of having done. Said Article 52(b) allows an employer to suspend the employment agreement of an employee without pay if the employer has filed a criminal complaint against the employee or the employee has been charged by the public prosecution for an offence that is incompatible with his or her position. If the employee is cleared of blame, the employer must reinstate him or her and pay compensation for lost salary.

The employees brought proceedings against their employer before the Tribunal in Bihor. They claimed annulment of the decision issued by the employer on the suspension of employment during criminal investigation, arguing that Article 52(b) is unconstitutional for the following reasons:

• it violates the presumption of innocence principle;
• it is incompatible with the right to work as provided in various legal instruments
• it is at odds with the non-discrimination principle;
• it contradicts the logic that an accessory sanction (in this case, the suspension of the employment agreement) cannot be applied prior to the principal sanction (in this case, the criminal penalty, if any);
• the compensation awarded in the event the suspension is determined to have been unlawful fails to cover the employee’s entire (material and immaterial) loss;
• certain categories of persons, such as magistrates and members of Parliament, are excluded from the scope of Article 52(b), in that they can continue working and being remunerated pending the outcome of the criminal investigation;
• there is no statutory limit on the duration of the suspension, which can therefore go on for a long time.

Based on previous judgments by the Constitutional Court, the Tribunal considered Article 52(b) to be constitutional. However, the Tribunal nevertheless decided to refer the matter to the Constitutional Court, in accordance with legal requirements which state that a court (in this case, the Tribunal of Bihor) must refer any raised claim of unconstitutionality to the Constitutional Court, unless the claim of unconstitutionality is declared inadmissible by that court based on certain criteria expressly regulated by law.

Judgment

The Constitutional Court began by repeating its doctrine that Article 52(b) does not infringe the employee’s presumption of innocence, nor does it represent discrimination (since it applies to all employees). Further, the Constitutional Court held that:

• suspension is a lawful measure that protects the company against the danger of continuation of the employee’s illicit activity;
• the employee is entitled to compensation should the Court find him or her innocent;
• suspension does not imply that the employee is guilty and it is no more than a temporary measure;
• even where the employee’s behavior does not represent a crime, it still might represent a disciplinary misconduct sanctioned with disciplinary dismissal; therefore, given that a suspended employment agreement cannot be terminated until a final decision of the court is issued, suspension can be seen as a measure of protection for the employee.

The Constitutional court also held, in broad terms, that suspension does not restrict the right to work, since the employee can still choose to apply for another job. However, it then went on to examine the constitutional right to work in more detail. This right may be restricted, but only if the restriction is in pursuit of a legitimate objective and the means chosen to achieve that objective are effective, if it is necessary (indispensable for achieving the objective) and if it is proportionate (i.e. the interests at stake must be balanced in light of the objective). The Court considered that Article 52(b) does not respect all of these conditions. More specifically, it infringes the proportionality principle. Proportionality must be adhered to when restricting an employee’s right to work, since the employer both files the criminal complaint, and then decides to suspend the employment agreement, meaning that the entire process is at the employer’s discretion and is therefore open to abuse.

Considering the above, the Constitutional Court ruled on 23 April 2015 that Article 52(b) is unconstitutional. Yet, by that time, both the Tribunal in Bihor and the Court of Appeal in Oradea had already rejected the employees’ claim to annul the employer’s decision on 23 October 2014 and 18 March 2015 respectively. However, based on the Constitutional Court’s ruling of unconstitutionality, the employees are entitled to lodge an appeal on points of law before the Supreme Court. It is not yet known whether the employees will do so.

Commentary

The Constitutional Court’s dramatic change of view is interesting. The reason for this shift may lie in the fact that a series of legal amendments relating to suspension without pay occurred recently. For example, the point at which a magistrate can be suspended from duty has been changed from the time the criminal complaint was filed to the time the magistrate is sent for trial.

An employer who suspects an employee of gross misconduct and wishes to dismiss the employee, if possible with compensation for any loss caused by the employee, usually has a choice between two mutually exclusive courses of action:

a. To conduct a disciplinary investigation: This is a legal requirement to enable the employer to dismiss the employee for cause. If the outcome confirms the suspicion, the employer can dismiss the employee for cause, i.e. with immediate effect and without severance pay. Note that suspending the employee without pay during a disciplinary investigation has never been declared unconstitutional and thus is still permitted under Article 52(a) of the Romanian Labour Code. Or

b. To file a criminal complaint: If the outcome confirms the suspicion, the employer may dismiss the employee for cause, unless the court imposes a prison sentence. In the latter case, the employment agreement is terminated by law. However, if the outcome does not confirm the suspicion (i.e. the employee’s action is not considered a criminal offence), the employee’s misconduct may still be grounds for disciplinary dismissal.

Many factors determine the employer’s strategy, such as how certain the employer is that his suspicion is correct, and the employee’s financial position. If it is beyond doubt that the employee is guilty of a serious offence and the employee is unlikely to be able to pay compensation, option a. is the obvious choice. In other situations, option b. can have certain advantages. One is that the police are in a better position to collect evidence, without cost to the employer. Another advantage is that the employer can ask the criminal court to award a claim for damages, thereby removing the need for the employer to conduct separate (expensive) civil proceedings.

Comments from other jurisdictions

Germany (Dagmar Hellenkemper): German jurisprudence not only allows the suspension of the employee, but a well-founded suspicion that the employee has committed a criminal offense can even be grounds for dismissal without notice. The Federal German Labour Court (BAG) held that the presumption of innocence was only relative to the penal procedure and not necessarily applicable to civil law. It found that it was intolerable for the employer to keep an employee whom the employer reasonably believed brought harm to the employer. In order to prevent an innocent employee from being dismissed, the employer must take reasonable steps to investigate the facts of the accusation. If at the end of the criminal procedure the employee is proven innocent, he or she may claim the right to reinstatement – or – if the employee contested the dismissal, severance pay, depending on the circumstances.

Subject: Miscellaneous, uspension

Parties: Dorina Marioara Vese and Marilena Taut (petitioner) – v – Bihor Tribunal

Court: Curtea Constititionala (Constitutional Court of Romania)

Date: 23 April 2015

Case number: 279/2015

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