INTERNATIONAL CONFERENCE - Facultatea de Drept

Conference Proceedings - Galaţi, 24 th -25 th of April 2009
Year I, Vol. I - 2009
addressing her claims, to „see beyond” the terms used by the party, to
establish which is the object of her request and consequently, to pass a
lawfull and grounded decision in the limits of the claim which makes the
object of the cause, by observing the provisions stipulated under art. 129
last para C of the Civil procedure Code 1
It is also obvious the fact that her interest is direct and personal and
also born and actual, as the effects of the future circumstances can not
remove such characteristics, especially that the resignation, as we
previously stated, can not be deemed givingŔup of a triable subjective right
or abnegation of judicial protection.
We consider that the case under discussion is similar to what is
known in England as constructive dismissal (implicit dismissal) 2 .
This consists in acknowledging an employee’s right who resigned to
prove that his act is the consequence of the employer's conduct, which
made impossible for the employee to continue his labour relationship and
that, in fact what occured was a dismissal. The employee was forced to
resign; thus his consent was not freely expressed, but it was vitiated,
forced.
In such a situation, what ococured was not a resignation by the
employee, but an unlawfull and abussive dismissal, a constructive
dismissal by the employer. The employee was under the pressures made by
the employer, who, for example failed to observe his statutory or
contractual obligations, thus breaching the rights of the party in question,
forcing the employee to terminate his employment. Even if he files his
resignation as such, he does not waive his right to attack the act related to
the termination of the employment contract. The doctrine on constructive
dismissal is invoqued under the following circumstances:
- where is unilateral alteration of the individual employment
contract (alteration of the job content or of the work place);
- where is increase in the number and difficulty level of the
professional assignments;
1 M. Fodor, op. cit., p. 88; M. Filimon, Critical note to the decision no. 586/A/5.06.2002
of Bihor Law Court, under “Romanian Pandects” no. 3/2003, p. 137.
2 G. Schaub, U. Koch, R. Linck, H. Vogelsang, Arbeitsrechts – Handbuch, 12 Auflage,
Verlag C.H. Beck, München, 2007, pp. 1346-1348.
For further reading R. Dimitriu, Doctrine on contructive dismissal under the English
law, under „Romanian Review of Trade Law ” no. 2/2001, pp. 70-78; Idem,
Individual labor contract, actual and perspective,Tribuna Economică Publishing House,
Bucharest, 2005, pp. 403-404.
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