Employees’ participation in strikes frequently raises questions about their legal status during the protest and the effects on the employment relationship. One of those questions concerns the suspension of the individual employment contract during the strike and the way in which it operates. The lawyers of Costaș, Negru & Asociații are following the developments in this area very closely.
In this context, the High Court of Cassation and Justice, by Decision No 5/2025 handed down in an Appeal in the Interest of the Law, has provided an essential clarification on the effects of the employee’s participation in the strike. Thus, it was held that lawful participation in a strike entails the suspension of the employment contract by operation of law, without the need for a notification or decision by the employer.
This analysis therefore aims to explain the content and impact of the decision and the practical implications for employees.
As a matter of priority, strike is a right of employees and is one of the essential means by which workers and their organizations can promote and defend their economic and social interests.
According to the provisions of the Constitution and the Labor Code, the right to strike cannot be waived by collective or individual labor contracts. Such a waiver clause, even inserted in the contract, is null and void.
Also, according to Art. 146 para. 1 of the Labor Code, a strike can be declared only if, in advance, the possibilities of resolving the collective labor dispute through compulsory procedures have been exhausted, only after the warning strike has been carried out and if the organizers have informed the employers of the time of its onset at least 2 working days in advance.
The background to the above-mentioned decision is a legal issue arising out of disputes concerning the participation of probation counselors in the strike. In this situation, the employees had informed the employer of their intention to go on strike, but continued to work and were paid in full for the period.
Subsequently, the Ministry of Justice, as the employer, issued an order, by which it declared the retroactive suspension of their employment relationship for the period of the strike. The affected employees challenged this order in court, and the legal issue has now gone before the High Court to clarify the application of the legal provisions in force.
In a first opinion, it was considered that the work performed by the workers who informed the employer that they were going on strike must be regarded as work performed, since the workers did not inform the employer that they were going to interrupt their work, their work being time-punched according to the time sheets.
In the second opinion, it was held that the work performed by workers who informed the employer that they were going on strike, not merely that they were going to interrupt their work, although time-stamped according to the time sheets, must be considered as a period of suspension of employment.
In reality, although they announced their participation in the strike, the employees carried out their work, even though the performance of work is incompatible with the strike. This gave rise to an obligation on the employer to pay the wage entitlements for this period.
It should also be noted that the initiation and conduct of the strike as well as the participation in it are clearly and strictly regulated by Law no. 367/2022 and from the economy of the provisions of Chapter V it is understood that although the participation in the strike is free, the employees either join the strike or not, in which case they continue to carry out their work. However, the legal problem arose because the employees joined the strike but continued to carry out their work.
The decision of the High Court of Cassation and Justice clarifies the above-mentioned issues and establishes how the provisions of the labor legislation should be applied. This decision also contributes to balancing labor relations, protecting the right to strike and preventing ambiguities that could lead to abuses by employers or employees. At the same time, it creates the legal framework for consistent and predictable conduct in times of social tensions or collective protests.
In terms of the effects this decision has for employees, the clarification is substantial, as it makes it clear that participation in the strike initiates the suspension of the employment contract, and that during the strike they will not benefit from their salary rights.
Thus, while strikes remain a legitimate form of expressing employees’ grievances, the judgment indirectly imposes greater accountability in the use of this collective bargaining tool.
As regards the effects of the decision on employers, it creates an obligation for employers to keep rigorous records of striking employees and the duration of their participation, so as to be able to properly reflect their wage entitlements.
Finally, the conclusion of the High Court of Cassation and Justice was that the suspension of the individual employment contract or of the employment relationship at the initiative of the employee occurs as an effect of joining the strike, only for the duration of the participation in the strike, without the need for any further manifestation of will on the part of the employee.
In other words, when an employee decides that he or she wishes to join the strike, the individual employment contract is suspended without the need for any further formality. Also, the employer is not obliged to pay any salary entitlements for this period.
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 16 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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