18.01.2024

Salary rights related to the period of suspension of employment

According to art. 371 paragraph (1) of the O.U.G. no.57/2019 on the Administrative Code, "Civil servant is the person appointed, in the codifications of the law, in a public office" and Annex 5 contains the List of public offices.

Appointment to a public office is made by an individual administrative act which must necessarily contain the elements specified in Art. 529 para. (1) of the Administrative Code. According to the administrative doctrine, the employment relationship that arises is a public law one, and not a private law one, it is different from the employment relationship of employees, where the employment relationship is based on a contract negotiated by the parties^[1].

According to the common provisions, the power to issue administrative acts of appointment rests with the head of the public authority or institution or the person who has the legal power of appointment under special regulations^[2].

During the exercise of the office, the employment relationship may be modified, suspended or terminated under the conditions provided by the Administrative Code. Thus, according to art. 513 of the Administrative Code, the service relationship is suspended by operation of law when the person has been indicted for the commission of an offense among those referred to in art. 465 letter h) which refers to "the commission of an offense against humanity, against the State or against authority, corruption or service offenses, offenses that impede the administration of justice, forgery offenses or an offense committed with intent that would make it incompatible with the exercise of public office...".

This case of suspension of the service relationship is of interest in the brief analysis that follows, since by O.U.G. no. 191/2022 for the amendment and completion of O.U.G. no. 57/2019 on the Administrative Code, approved with amendments and additions by Law no. 348/2023, paragraph. (4) to art. 513 of the Adm. Code, a provision which establishes that in the situation in which "the dismissal or waiver of criminal prosecution or acquittal or waiver of the application of the penalty has been ordered, as well as in the case of termination of the criminal proceedings, the suspension from the civil service shall cease and the civil servant concerned shall resume work in the civil service previously held and shall be paid the salary rights related to the period of suspension."

Therefore, if one of the solutions listed in the text of the law is pronounced, the civil servant resumes his activity in the previously held position and will be paid the salary for the period for which he was suspended.

Until the entry into force of this provision, para. (4) of Art. 513 C. Adm. (1) letter l) of the Administrative Code were realized under the conditions of Art. 52 para. (2) of the Labor Code in relation to the provisions of Art. 367 of the Administrative Code^[3].

Thus, the aforementioned article of the Labor Code establishes that in the event that the innocence of the person in question is established, the employee shall resume his work and shall be paid, pursuant to the rules and principles of contractual civil liability, compensation equal to the salary and other rights of which he was deprived during the term of the contract.

The first problem raised by this text of the law is the meaning of the concept of the employee's "innocence" within the meaning of criminal law. If it is proved and found beyond reasonable doubt that the act exists, constitutes an offense and was committed by the defendant, the court shall order the conviction/ waiver of punishment/ deferment of punishment, under the conditions of Art. 396 para. (2) - (4) of the Code of Criminal Procedure and thus the guilt of the person is proven. If, however, the criminal proceedings are terminated due to the statute of limitations on criminal liability, can we still consider that the innocence of the defendant has been established, since he is presumed innocent?

In view of this situation, by Decision of the Constitutional Court No. 116/2018^[4], in the grounds for rejecting the exception of unconstitutionality of the provisions of Art. 52 para. (2) of the Labor Code, it was held that "To the extent that, in the decision handed down, the judicial body does not make a clear-cut finding that it is in one of the situations referred to in Art. 16 para. (1) lit. a) -d) of the Code of Criminal Procedure, i.e. "a) the act does not exist; b) the act is not provided for by criminal law or was not committed with the guilt provided for by law; c) there is no evidence that a person committed the crime; d) there is a justifying or non-culpable reason", it is obvious that the grounds for suspension are not invalidated, even if no conviction is pronounced. Clarification of the status of the employment relationship therefore requires further action."

It follows from the foregoing that the employee should request the continuation of the criminal proceedings in order to prove his innocence and to remove the state of uncertainty, since the termination of the criminal proceedings is a neutral solution which neither proves his guilt nor his innocence in terms of his employment relationship.

The second issue raised by the legal text is that of the compensation due to the employee during the period of suspension of the employment relationship, whether these wage entitlements are determined by the court or by the employer.

In Decision No 19/2016^[5], a preliminary ruling on a question of law, the High Court of Cassation and Justice held that the employee's assets are subject to a right of claim as a result of the reactivation of the employment relationship. However, the existence of that right must be confirmed by a court. Therefore, these rights do not arise directly, by virtue of the law, in the patrimony of persons, but they must be established by a court of law in order to have the constitutive effects of rights^[6].

^[1] D. Apostol Tofan, Administrative Law, vol. I, 5th ed. C.H. Beck, București, 2020, p. 359.

^[2] Șt.-C. Mirică in V. Vedinaș (coord.), Código administrativ comentat. Explicații. Jurisprudence. Doctrină, vol. II, Ed. Universul Juridic, Bucharest, 2023, p.550.

^[3] Decision No. 35/2023 on the examination of the application lodged by the Cluj Court of Appeal - Section III - Administrative and Tax Disputes for a preliminary ruling on some points of law. Published in Official Gazette no. 600 of June 30, 2023.

^[4] Published in Official Gazette No 603 of July 16, 2018.

^[5] Published in Official Gazette No 1010 of February 15, 2016.

^[6] M.-C. Preduț, Código muncii comentat. Noua organizare a muncii, 3rd edition, supplemented and revised, Ed. Universul Juridic, Bucharest, 2022, p. 242.