In the practice of Costaș, Negru & Asociații – Lawyers’ Civil Partnership regarding disputes with the County Pension House, we often encounter interesting situations related to the latter’s perspective regarding re-employment after issuing the retirement decisions.
For example, through a decision recently handed down by the Cluj Court of Appeal in the matter of labor disputes, the team of lawyers from Costaș, Negru & Asociații – Lawyers’ Civil Partnership managed to obtain, through a formulated action, reassignment to a higher work group than mentioned in the work book, even after issuing the retirement decision.
After complying with the mandatory preliminary procedure, I submitted to the Cluj Court a summons request through which I requested the obligation of the Cluj County Pension House to establish that the activity had been carried out for a period of more than 10 years at Î.P.L Cluj, which later became V.S.A. classified in work group II, as a welder and the obligation to recognize the work group for the mentioned period.
In order to justify the active procedural quality, we based ourselves on the provisions of art. 100 of Law 263/2010 which refers to the persons who carried out activities in jobs classified in the I and II work groups, according to the legislation prior to April 1, 2001, those who carried out activities in jobs classified under special conditions or special conditions and who, according to the law, benefit from the increase of the monthly scores achieved in the respective periods, as follows: by 25% for the periods in which they carried out activities in places classified in the II work group, according to the previous legislation on April 1, 2001, or in jobs classified under special conditions, according to the law: with 50% for the periods in which they carried out activities in jobs classified in work group I, according to the legislation prior to April 1, 2001, or in places of work under special conditions, according to the law.
The passive procedural legitimization of the territorial/county pension houses is also justified, because they are the only entities authorized by law to issue pension decisions, based on all the documents proving the periods of contribution, the court decision by which the reclassification takes place in a work group being such a document. At the same time, the territorial/county pension houses represent the only entity called to capitalize on aspects related to seniority and placement in work groups I and II in the process of establishing pension rights, even if they do not have the role of a debtor in the legal relationship between plaintiff and this.
One of the legal grounds invoked was Order no. 50/1990 on the specification of jobs, activities and professional categories with special conditions, which fall into groups I and II of work with a view to retirement. The mentioned order concerns the inclusion in work groups I and II both for the period prior to 18.03.1969, as well as the work period undertaken after this date.
By Decision of the Constitutional Court no. 223 of July 11, 2002, the applicability of the mentioned legal text was extended to the situation where there were no primary documents, regardless of the reason, if they were not drawn up or were destroyed, already being noted by the courts that, for the categories who cannot obtain official supporting documents, would otherwise violate art. 16 para. (1) of the Romanian Constitution.
Thus, we considered that for the situation in which there are no more primary documents, it is necessary to process the County Pension House, as the institution that justifies an interest in formulating oppositions to the requests of former employees to recognize their work group, in that, according to the provisions of art. 4 para. 2 and 3 of Law no. 263/2010, ensures the administration of the public pension system, operating under the CNPP.
In this regard, I showed that I took the necessary steps and failed to obtain primary documents from the archive holder, in terms of the inclusion in the work group of the activity of the client represented during the period of the action, so that the passive procedural quality returns, as of course, to the Cluj County Pension House.
This is the sure authority with an interest in the case, it being obvious that the archive keeper has no way to issue a certificate attesting a placement in the work group that does not appear from the documents he has and he has no interest in being in trial in order to prove against him the fact that the plaintiff would have performed the activity under the conditions of the work group.
This view was validated by the Cluj Court through civil sentence no. 1615 of 8.06.2022, through which it was held that the plaintiff carried out, during the indicated period, his activity in conditions that justify his inclusion in the II work group in a percentage of 100% and at the same time that it was proved that he carried out the activity in difficult conditions, both in terms of the workplace and the actual working time, but he was deprived of the benefit of the appropriate employment, which is why the action appears to be well-founded.
This reasoning was then shared by the higher court through civil decision no. 2365 of 22.12.2022 pronounced by the Cluj Court of Appeal, as a result of the unsuccessful appeal made by the Cluj County Pension House.
This article was prepared, for the blog of the civil society of lawyers Costaș, Negru & Asociații, by av. Diana Badiu from the Cluj Bar Association.
Costaș, Negru & Asociații is a civil society of lawyers with offices in Cluj-Napoca, Bucharest and Arad, which offers assistance, legal representation and consultancy in several areas of practice through a team composed of 16 lawyers and consultants. Details regarding legal services and team composition can be found on the website https://www.costas-negru.ro. All rights for the materials published on the company’s website and through social networks belong to Costaș, Negru & Asociații, their reproduction being permitted only for informational purposes and with correct and complete citation of the source.
