In its labor law practice, the team of Costaș, Negru & Asociații is confronted with several practical problems, which are not easily solved even by the courts. One of these problems is related to the appeal against a dismissal decision on the grounds of job abolishment.
By way of example, in the judgment recently handed down by the Cluj County Court and upheld on appeal by the Cluj Court of Appeal, the team of lawyers from Costaș, Negru & Asociații managed to win a victory for the employer. In concrete terms, it was shown that the job abolishment was legal, which is why the appeal against it was rejected. We intend to elaborate on the legal issue below.
Therefore, the dispute was initiated by a former employee who claimed that the job abolishment did not fulfill the legal conditions, i.e. it was not effective and was not based on a real and serious cause. It was also claimed that he was in fact occupying a post other than that provided for in the individual contract of employment and that it had not been deleted from the employer’s organization chart.
First of all, if we refer to the job abolishment, the legality of this measure must be analyzed in the light of three conditions: the post must actually be abolished and the cause of the abolition must be real and serious.
With regard to the actual nature of the job abolishment, what matters is its removal from the company’s organization chart. Therefore, what the court is examining is whether or not the post alleged to have been abolished still appears in the organization chart.
Further, we specify that the measure to abolish the post is based on a concrete situation, determined by economic difficulties, reorganization of the unit, essentially causes unrelated to the person or conduct of the employee, which must be apparent from the staffing and organizational chart of the unit.
In the dispute at issue, it was successfully demonstrated, by comparing the organization charts, that the post was effectively abolished because it no longer appeared in the organization chart.
Further, the job abolishment has a real cause has a real cause when it is objective and serious, when it is based on sound studies aimed at improving the work and does not disguise reality. It is apparent from the supporting documents submitted in the case-file that that cause was genuine.
The serious nature of the dismissal concerns both the external aspects of the dismissal, such as economic problems or the need to optimize the profit to be obtained by the company, and the fact that it is also necessary to examine the manner in which the employee concerned by the dismissal measure was chosen.
A very important point to note is that if the employee challenges the dismissal decision following the job abolishment, the court cannot assess or analyze the appropriateness of this abolition. In other words, the law allows each employer to organize his work as he sees fit.
The court is empowered to examine only whether the dismissal measure was adopted in compliance with the provisions of Article 65 of the Labor Code and to examine the legality and merits of the measure.
Specifically, the court cannot draw conclusions as to how an employer chooses to organize its work in the event of financial problems; this is because the court cannot substitute itself for the employer in the management of the establishment, i.e. it cannot make assessments of its financial indicators in order to assess whether such a measure will have the desired effect.
Thus, in the event of dismissal for reasons not related to the employee, the employer’s management body is the decision-making body which can determine whether the post should be abolished and the employee who occupies it dismissed. In order to be able to abolish a post and, consequently, dismiss the employee occupying it, the employer must go through a number of fundamental stages, the consequences of which will be reflected in the dismissal decision.
On the same note, the Constitutional Court ruled in its Decision no. 420/2013, in which it held that: the court does not analyze the appropriateness of the employer’s internal restructuring decision, nor does it censure the measures taken for this purpose, but carries out, according to its competence, the legality control by which it ensures that this measure corresponds to an objective, real and serious need of the company and does not conceal an abusive dismissal.
Before deciding to abolish a post, the employer must carry out an economic analysis showing the need for reorganization with a view to making the activity more efficient in terms of reducing staff costs, costs of certain services, re-engineering, etc., and this analysis must be contained in a report which will be brought to the attention of the management of the employing company.
Secondly, in relation to the claimant’s contention that he was in a post other than that provided for in the individual contract of employment, several points are important to note.
The court therefore held that, if the nature of the work performed does not change, a change in the duties of the post by amending the job description does not constitute a change in the individual contract of employment. In other words, even if the employee performs additional work to the job description, he occupies the same post because the individual contract of employment is not amended.
In conclusion, when we are talking about a job abolishment, what the court analyzes is whether this measure was effectively ordered by the employer and was based on a real and serious cause. If these conditions are met it is obvious that there is no abuse on the part of the employer and the court will reject the appeal against the dismissal decision as unfounded.
This article was prepared for the blog of the law firm Costaș, Negru & Asociații by atty. Loredana Feier, from the Cluj Bar Association.
Costaș, Negru & Asociații is a law firm with offices in Cluj-Napoca, Bucharest and Arad, which provides assistance, legal representation and advice in several practice areas through a team of 20 lawyers and consultants. Details of the legal services and the composition of the team can be found at https://www.costas-negru.ro.
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