Poate înceta contractul de muncă în timpul șomajului tehnic?


To answer this question, it is important to emphasize that technical unemployment represents the suspension of the employment contract initiated by the employer. Whenever during the suspension period a cause for the automatic termination of the individual employment contract arises, the cause of automatic termination prevails.

Technical unemployment is a case of suspension of the individual employment contract, leading to the suspension of all deadlines related to the conclusion, modification, execution, or termination of the individual employment contract, except in cases where the individual employment contract terminates automatically.

What are the cases provided by the Labor Code in which the existing individual employment contract terminates automatically?

These are provided in Article 56 of the Labor Code:

  1. a) At the date of the death of the employee or the employer as an individual, as well as in the case of the dissolution of the employer as a legal entity, from the date the employer ceased to exist according to the law;
  2. b) At the date of the irrevocable court decision declaring the death or interdiction of the employee or the employer as an individual;
  3. c) On the date of the cumulative fulfillment of the standard age conditions and the minimum contribution period for retirement; on the date of communication of the pension decision in the case of disability pension of grade III, partial early retirement, early retirement, retirement for age limit with a reduction in the standard retirement age; on the date of the medical decision on work capacity in the case of disability of grade I or II; (Law no. 12/2015)
  4. d) Following the absolute nullity of the individual employment contract, from the date on which the nullity was established by the agreement of the parties or by final court decision;
  5. e) As a result of admitting the request for reinstatement in the position held by an illegally dismissed or unjustifiably dismissed employee, from the date of the final court decision of reinstatement;
  6. f) As a result of being sentenced to serve a custodial sentence, from the date of the final court decision;
  7. g) From the date of withdrawal by the competent authorities or bodies of the permits, authorizations, or certifications necessary for the exercise of the profession;
  8. h) As a result of prohibiting the exercise of a profession or a function, as a security measure or complementary punishment, from the date of the final court decision imposing the ban;
  9. i) At the expiration of the term of the fixed-term individual employment contract;
  10. j) Withdrawal of the consent of parents or legal representatives, in the case of employees aged between 15 and 16.

Therefore, we draw attention that in the case of fixed-term individual employment contracts, in practice, their duration does not suspend during technical unemployment, but the employment contract will terminate automatically, prevailing over the suspension.

If the employer opts for dismissal, this will only be done in accordance with the provisions of the Labor Code, more precisely, complying with Article 75(1) of Law no. 53/2002 – the Labor Code, which stipulates that in the case of dismissal, the employee must benefit from the right to a notice period that cannot be less than 20 working days. Therefore, first, the measure of suspending the suspension will be ordered, and then the dismissal procedure will start, respecting all legal conditions and the mentioned notice period.

Can an employee on technical unemployment resign? The employee can unilaterally terminate any individual employment contract at any time. The employer can waive the statutory notice period in his favor, given that it is no longer justified.

Article authored by Roxana Constantinescu, lawyer at SCPA CÂMPAN & ȚIMONEA


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