INTERNATIONAL CONFERENCE - Facultatea de Drept

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Conference Proceedings - Galaţi, 24 th -25 th of April 2009 Year I, Vol. I - 2009 Attributions (professional assignments), that the employee must perform under his position are documented under the job-description record, 1 which is addendum to the individual employment contract. The alteration of the professional assignment in the currency of the performance of the individual employment contract is at any time possible by mutual agreement of the parties. But, the unilateral alteration of the contract, by the employer’s act, in principle is inadmissible. 2 Judicious practice still helds that the passing over for an undeterminated period of one employee even with the same employer, to another job than the one agreed when hired is deemed an essential alteration of the labour contract and can not be enforced without the other party’s consent 3 . Even the passing over from one job to another with the same employer, and by granting the same salary, but with the alteration of the professional assignments is deemed alteration of the job content and thus alteration of the labour contract, fact which is inadmissible 4 . Among other things the au fond court stated that it was changed only the name of the position and not the job content or the salary, but it did not manage the proofs in this matter, and without asking the parties to do so. At first sight, it is obvious that a Coordinator Recruitment Developer’s duties can not be identical to the duties performed by a Training Coordinator of a project. 1 Ibidem, p. 267. 2 Al. Ţiclea, op. cit., p. 513. 3 Bucharest Law Court, Civil Section IV, issued in December no. 1729/1991 and no. 146/1991, in ―Civil Procedural Practice Compilation‖ for the 1991 (Forewords signed by dr. Ioan Mihuţă), Publishing and Press House “Şansa”, Bucharest, 1992, pp. 154-155). For the same reason for further reading Supreme Law-court, Civil Section, issued in December no. 2037/1972 and no. 1168/1975, in Ioan Mihuţă, Judicial Practical Repertoire in the civil field of the Supreme Law Court and other law courts, for the years 1969-1975, Publishing House Ştiinţifică şi Enciclopedică, Bucharest, 1976, p. 256, no. 9 and no. 8 respectively. 4 Ploiesti Court of Appeal, December no. 392/1998, under Jurisprudence Bulletin Procedural Practice Compilation, I Quarter -1998 (sellective work drafted by Ioan Ŕ Nicolae Fava, Mona-Lisa Belu Magdo, Elena Negulescu), Lumina Lex Publishing House, Bucharest, 1998, pp. 247-240. In a case, it was held that the unilateral alteration of the individual labour contract is allowed by exception only under the cases stipulated under the Labour Code, namely by means of delegation or assignment (Court of Appeal Craiova, Labour and social ensurances litigations section, Dec. no. 2966/2006, citated by Mrs. Roxana Radu, in ”Romanian Review of Employment Law no. 1/2009, pp. 143-144). 19
Conference Proceedings - Galaţi, 24 th -25 th of April 2009 Year I, Vol. I - 2009 At the same time, the au fond court, as well as the recourse trial made no connection between the alteration (lawful or unlawful) of the job content and the plaintiff’s interest in promoting her action. In considering the following, we hold that the interest requirement existed during the entire currency of the judicial procedure and not only “...for 3 days”, as the law court wrongfully argued. We consider that, the interest was not extinguished when the plaintiff notified her resignation, but it continued to subsist as long as the plaintiff has not given up to her subjective right constured to trial and not even when the introductory request was on trial. The plaintiff's resignation can not be deemed such a giving up, as it can be easily noticed under the notification, the employee (the plaintiff) resigned from the position held under the company at the date when the court law was seized (meaning the new position in which she was appointed by the employer, without her prior approval), measure which she disputed by her request, and not from the position held compliant to her individual employment contract in which she required to be reinstated. Thus judging the situation, one should notice that it is not the case of a pure and simple resignation, as a result of the expression of the employee's free will, assumption taken into consideration by the legislator according to art. 79 of the Labour Code, but that what occured was a forced, constructive dismissal determined by the employer's conduct. If this does not unilaterally and illegally alters the job content, the resignation would have not occured and it would not have been justified. The employee's interest should be considered by judging the abuse committed by the employer, but also by taking into consideration the employee's need to regain her lost position. Going forward with the action started prior to the date of resignation is exactly the proof that her interest existed both at the date when the law court was seized and also during the entire currency of the judicial procedure. The plaintiff’s interest became even more obvious when her job was declared vacant and taken out to contest. The plaintiff's interest was also legitimate, rightfullness which resulted from the fact that the right whose judicial protection was alleged was legitimate; the right to stability in work is expressly stipulated under the Labour Code (art. 41 and art. 42; art 49 and art. 50; art. 55 and art. 56). The court of law, based on its active role, should have given the plaintiff's request its exact juridical qualification, depending on its content and based on the provisions stipulated under art. 84 and art. 129 Civil Procedure Code, and to file for the plaintiff's matters brought into attention at the trial. The judge is thus called for understanding the party's will when 20
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