97 views

The countermanding of the dismissal decision – controversial jurisprudence

The employer’s possibility to revoke the lay-off decisions, no matter what the reason is, does not attract unanimous decisions in the case law. We have observed a contrary tendency in the recent caselaw, governed by the irrevocability principle of the unilateral transaction and by the lack of any norm allowing the countermanding of this decision. Nevertheless, the issue is very alluring from the the theoretical point of view but the practical implications will require a vigorous intervention of the doctrine, at the least.

The employer has revoked the challenged dismissal decision, the admission of the exception:lack of object in the challenge. The revocation of the dismissal decision is allowed because the decision is not a jurisdictional act and its effects are: restoring the condition of the appealing part in her old position. The recurrence appealing formula does not produce legal effects because it has not been communicated to the employee. The existing inscriptions prove that the employer has invited the fired employee to resume her activity, based on the previous signed contract (Appeal Court of Galati, Section: work and social insurance conflicts, Decision no. 34/R – the 22nd of January 2007, the Romanian Journal of Labour Law, no. 4/2007, p. 149)

The employer may not revoke its dismissal decision because such a possibility is not regulated in the Labor Code and this may turn into the hiding or disguising of illegal lay-off’s. Even if the first decision will be declared null and void the employer still cannot proceed to revoking it because the legal provisions on the voidance issue do not allow it being covered up in any way and revocation demands the existence of a previous signed contract.  (Appeal Court of Bucharest, Section: Civil Section, no. 8 regarding labor and social insurance issues; Civil ruling no. 868/R dated on the 1st of February 2012, selected and processed by Petrica Arbanas in the Labor Law Romanian Magazine, no. 2/2012 http://idrept.ro)

The disciplinary dismisal decision is an unilateral transaction, governed by the irrevocability principle, that applies in completion of the legal provisions indicated in the Labor Code, article 278, therefore it may not be revoked by the employer. The disciplinary lay-off dismissal decision that has been communicated to the employee cannot be revoked if the employer changes its mind. (Appeal Court of Bucharest, Section: Civil Section, no. 8 regarding labor and social insurance issues; Civil ruling no. 1021/R, dated on the 25th of February 20120 – Selected and processed by Judge Petrica Arbanas, in the Romanian Journal of Labour Law, no. 3/2010, http://legal.sintactonline.ro)

>> The source

Diana STOICA

Related posts