Wednesday, December 9, 2020

Fictitious reorganization of the workplace - reason for canceling the decision to dismiss the employee

The dismissal for reasons not related to the employee's person represents the termination of the individual employment contract determined by the termination of the job occupied by the employee, for one or more reasons unrelated to his person. The termination of employment must be effective and have a real and serious cause.

Lack of the condition of effective termination of employment

The employer must prove the effective termination of the job, so that, at the level of the employer in the newly established structures, there are no positions of the nature of the one occupied by the dismissed employee.

The employer's organization chart must specify concretely which are the newly established positions, in order to be able to allow the court to carry out a verification of the effectiveness of the abolition of the occupied position.

Failure to submit the detailed organizational chart of the jobs or other documents proving the decisions taken at the level of the employer's management, regarding the nature of the reduced positions, may form the conviction of the court in the sense of illegality of the dismissal measure.

For example, the court found the illegality of the employee's dismissal: the applicant's position as an order engineer within the marketing service was not removed from the company's organizational chart. In reality, while the applicant's dismissal, due to the abolition of the post, was being finalized, the company employed two other persons, in identical positions, within the same marketing service. Moreover, the employment of the two employees was already in the employer's plan, from the moment of drawing up the note substantiating the termination of the position held by the applicant.

Therefore, the court found that the defendant company did not seek at any time to make savings on the salary budget, but to remove the plaintiff from the company, the dismissal measure being obviously directed against the person, without any connection with the position held by him.

In order for the occupied position to be effectively abolished, it is necessary to remove it from the employer's structure, so that it is no longer found in the organizational chart or in the company's list of positions.

In this sense, in a case decision, the court found that by reorganizing the activity, only one position was abolished, respectively that of the appellant, other compartments and positions being set up.

The defendant company did not prove that the termination of the position was an effective measure, as the position held by the appellant, that of deputy director, was removed from the company's structure only temporarily, respectively for a period of about 9 months, being later in its organizational chart.

Lack of seriousness of dismissal

The courts found that there was no serious dismissal, if this measure was not based on any analysis aimed at improving the activity, cost efficiency, etc., but a simple proposal of the head of marketing, who said that the abolition of the post is necessary. occupied by the appellant, on the grounds that there was a significant decrease in the level of demand on the energy works market.

The court held that there was no decision of the company's management which showed that this proposal had been analyzed, that a plan for reorganizing the company's activity had been approved, that the measure to abolish the position held by the appellant would have been considered appropriate by the company's management. or that it would be able to lead to the achievement of the objective pursued by the head of the service and the issuance of the dismissal decision, there is no intermediate act, which outlines the lack of seriousness of the reorganization.

In another case, the courts noted the non-existence of the serious nature of the dismissal, related to the fact that, prior to the decision to abolish the position of deputy director, the appellant was asked to hand over all assets under management and vacate the office where he worked.

Considering that the decision regarding the reorganization of the activity was taken after, previously, the appellant was asked by the company's management to hand over the goods and release the office, it takes, in reality, the form of a measure targeting the employee.

Lack of a real and serious cause

In order to constitute a real and serious cause in the sense of art. 65 of Law no. 53/2003 - Labor Code, the circumstance invoked by the employer as the real cause of the elimination of the job, must necessarily impose the abolition of some jobs.

The cause is real when it presents an objective character imposed by economic difficulties, independent of the good or bad faith of the employer and is serious when it is imposed from the obvious necessity regarding the improvement of the activity and does not conceal re