On the hearing of November 7, 2016, the High Court of Cassation and Justice “The Complaints Committee for Civil Matters” settled the appeal filed by the Court of Appeal in Iasi, the Labor and Social Insurance Litigation Division, in order to issue a preliminary ruling on the resolution of a point of law and pronounced Decision no. 37 in case no. 2461/1/2016, establishing the following:
In interpreting and applying the provisions of art. 16 par. (1) and art. 57 par. (5) and (6) of the Labor Code in conjunction with Art. 211 para. (l) lit. b) of Law no. 62/2011, art. 35 Civil Procedure Code and Art. 6 of the European Convention for the Protection of Human Rights, in the event of failure by the parties to fulfill the obligation to sign the individual written labor contract, the natural person who provided the work for and under the authority of the other party has open the way of action in finding the employment relationship of its effects and in the event that the respective employment report ceased before the court’s notification “.
The ICCJ decision will become binding on all courts as of the date of its publication in the Official Gazette. Publication in the Official Gazette of Romania, Part I will be made after the drafting of the recitals and the signing of the decision.
As a consequence, even if the employment report has ceased, the former employee may ask the court to find out the existence of that work report that has been carried out without his former employer complying with the obligation to conclude the employment contract attesting the written report.
The legal provisions mentioned in the text applicable to the case:
Article. 16 par. (1) of the Labor Code – (1) The individual labor contract shall be concluded on the basis of the consent of the parties, in written form, in the Romanian language. The obligation to conclude the individual labor contract in written form rests with the employer. The written form is mandatory for the valid conclusion of the contract.
Article. 57 par. (5) and (6) of the Labor Code – (5) The person who performed the work on the basis of an individual labor contract has no right to remuneration, according to the way of fulfilling his job duties. (6) The finding of nullity and the establishment, according to the law, of its effects may be made by agreement of the parties.
Article. 211 para. (l) lit. b) of Law no. 62/2011 – b) the finding of invalidity of an individual labor contract may be requested by the parties for the entire period in which the contract is applied.
Article. 35 Code of Civil Procedure – The person who is interested may ask for the existence or non-existence of a right. The application cannot be received if the party can demand the realization of the right in any other way provided by law.
Article. 6 of the European Convention for the Protection of Human Rights – the right to a fair trial.