DECISION OF THE PLENARY SESSION

SUPREME COURT OF JUSTICE OF THE REPUBLIC OF MOLDOVA

 

Regarding the judicial practice of examining disputes arising under conclusion, modification and termination of the individual employment contract

no. 9 of 22.12.2014

Bulletin of the Supreme Court of Justice of the Republic of Moldova, 2015, no.4, page 4

 

Modified by:

Decision of the Plenum of the Supreme Court of Justice of the Republic of Moldova no. 34 of 04.12.2017

 

Analyzing the results of the generalization of judicial practice in resolving disputes regarding concluding, modifying and terminating individual employment contracts, for the purpose of correct application and unitary legislation governing the legality of the refusal to employ and the legality of the dismissal act, the Plenum of the Supreme Court of Justice, based on art.2 letter d), art.16 letter c) of Law on the Supreme Court of Justice no.789 of 23.03.1996, art.17 Code of Procedure offers the following explanations.

[The introductory part amended by the Decision of the SCJ Plenum of the Republic of Moldova no. 34 of 04.12.2017]

1. The courts are warned about the extensive content of art. 20 of the Constitution on free access to justice for the protection of rights, freedoms and interests which also includes rights arising from employment relationships. It is also necessary to apply the provisions of the Labor Code correctly and uniformly, adopted by Law no. 154-XV of 28.03.2003, and other laws and normative acts containing norms of labor law and regulates labor relations, mentioned in art. 4 of the Code work.

 

When judging individual labor disputes, the court applies the law of another State in accordance with national law or international treaties to which the Republic Moldova is a party, and in case of discrepancy between them, the international act applies.

 

2. Divergences arising in the conclusion, modification or termination of the individual contract

are labor disputes and fall into the category of cases, provided in art.1821 CPC paragraph (1) CPC, for which the procedure of judicial mediation is obligatorily applied.

 

In accordance with art.183 CPC, after receiving the request for summons, the judge prepares the case for judicial debate, to ensure its fair trial and prompt.

 

Preparation for judicial debate is mandatory for any civil case and has the purpose of specifying the law to be applied and determining the legal relations between the parties.

 

Thus, upon receipt of the summons, the court will verify whether the action to be examined in the administrative litigation procedure or in the proceedings common law.

 

[Point 2 amended by the Decision of the SCJ Plenum of the Republic of Moldova no. 34 of 04.12.2017]

 

3. The administrative contentious court is considered to have jurisdictional jurisdiction, when the active procedural quality is held by a civil servant, military, person with status military, and the object of the dispute is an act of public authorities, which is prejudicial legitimate rights resulting from labor relations.

The application for the settlement of the individual labor dispute will be submitted to the court of competent court established by art.38 CPC (Consultative Opinion of the Plenum of the Supreme Court of Justice no. 4ac-29/13 of 30.09.2013).

 

The actions of administrative disputes are presented in the courts in whose radius the territorial domicile of the applicant or the defendant's registered office, unless another jurisdiction is established by law.

 

4. The request regarding the contestation of the refusal of employment or of the act of dismissal - the order (disposition, decision, decision) of the employer is submitted to the court within 3 months from the date when the employee found out or had to find out about the violation of his right.

 

The requests submitted with the omission, for justified reasons, of the terms provided by law may be reinstated in court. The court will summon the parties to the dispute in for 10 working days from the date of registration of the application and will examine the application for settlement of individual labor dispute within a maximum of 30 working days from the date of registration and will issue a judgment with the right of appeal according to the Code of Civil Procedure and will remit its decision to the parties within 3 working days from the date of issuance (art. 355 Labor Code).

 

The limitation period of 3 months in disputes arising directly from the termination of the contract individual work will be calculated from the day the order was notified to the employee against signature, from the day of issue of the workbook, on the grounds of dismissal, or from the day of finding the employee 's refusal to take notice of the dismissal order for to sign or receive the workbook. If none of the listed situations is present, the term will be calculated on the basis of the general principle - from the moment the employee found out or had to find out about violation of law.

 

5. According to art.85 paragraph (1) letter a) CPC and art.353 Labor Code, employees and representatives which are addressed in the courts with requests for settlement of disputes and conflicts arising from the reports provided for in art.348 of the Labor Code, including to attack judgments and decisions on disputes and disputes concerned, are exempt from payment judicial expenses (state tax and expenses related to the trial of the case).

 

In the case of admitting the action, the expenses related to the trial of the case borne by the court of trial, as well as the state tax, will be collected from the defendant's budget (art. 98 para. (1) CPC), if the latter is not exempt from state tax by law (art.85 CPC).

 

6. The court is not entitled to refuse to receive the request due to omission of the term of litigation. If the court, examining the circumstances of the dispute, found that the time limit for bringing an action had been violated for unfounded reasons, in this case refuses to admit the action as belated.

 

Conclusion of the individual employment contract

 

7. When examining the causes related to the unfounded refusal of employment, it is to be considered takes into account the provisions of art.47 of the Labor Code, according to which any limitation, direct or indirect, in rights or the establishment of advantages, direct or indirect, at the conclusion individual employment contract depending on gender, race, ethnicity, religion, domicile, option political or social origin. The employer's refusal to hire is in writing. If the refusal is not in writing, it can be proved by any means of trial. For example, a refusal to work for reasons will be considered unfounded pregnancy or the existence of children up to 6 years old (art. 247 CM).

 

Because the legislation in force contains only an indicative list of reasons why the employer can not refuse in employment, the question of whether there was discrimination in the refusal to conclude an employment contract or will not be decided in each concrete case by

the court.

 

If it is established that the employer refused to conclude the individual contract work on grounds related to the qualification of the employee professional or personal, such refusal will be considered justified.

 

Professional qualities should be understood in particular the person's ability to perform certain functions, taking into account the professional qualifications (presence of the qualification, specialty due), which relates to the personal qualities of the worker - state of health, experience in domain.

 

In addition to the above, the employer is entitled to present the claimant together and other requirements necessary for the conclusion of the individual employment contract under the employer 's internal regulations or direct regulations of the law (for example, the presence of citizenship of the Republic of Moldova, being in accordance with art.27 paragraph (1) letter a) of the Law on to the civil service and the status of civil servant no. 158 of 04.07.2008), or when necessary in addition to the standard or typical professional qualification requirements due to the specific work (such as knowledge of one or more foreign languages, the ability to work at computer).

 

At the same time, the court will conclude whether there was an objective justification and reasonable in refusing to conclude the individual employment contract (case law of the European Court of Justice for Human Rights, Thlimmenos v. Greece, judgment of 06.04.2000).

 

If it is found that the employer's refusal is unfounded, the court will order the obligation the employer at the conclusion of the individual employment contract. It is to be concluded from the day of addressing the person requesting employment. Unfounded refusal of employment is one of cases of illegal deprivation of the opportunity to work, and reparation for the damage caused by the employer will be performed according to art.329, 330 Labor Code.

 

8. The court must take into account the fact that the individual employment contract is concludes in writing, drawn up in duplicate and signed by both parties and produces effects from the day of signing, unless the clauses of the contract provide otherwise (art.56-58 of the Code work). The employment is legalized by the order (disposition, decision, decision) of the employer, issued based on the individual employment contract and is notified to the employee, under signature, within 3 working days from the date of signing by the parties of the individual employment contract (art.65 Labor Code).

 

Modification of the individual employment contract

 

9. According to art.68 of the Labor Code, the individual employment contract cannot be modified by an additional agreement signed by the parties, which is annexed to the contract and is a party integral part of it.

Modification of the individual employment contract is considered any change or completion referring to:

 

- duration of the contract;

 

- the specifics of the work (heavy, harmful and / or dangerous conditions, introduction of clauses specific according to art.51 etc.);

 

- the amount of work remuneration;

 

- work and rest regime;

 

- specialty, profession, qualification, position;

 

- the nature of the facilities and their method of granting if they are provided in the contract.

 

As an exception, unilateral modification by the employer of other clauses of the contract individual work than those shown is possible only in the cases and under the conditions provided  by labor law.

 

Taking into account the content of art.50 of the Labor Code, the employer does not have the right to request the employee perform work that is not stipulated in the individual employment contract, except for the cases provided by the Labor Code (art. 73 of the Labor Code).

 

The employer can change temporarily the place and type of work, without the consent of the employee, in case of force majeure major or as a measure of protection of the employee, in the cases and under the conditions provided by the Code work.

 

According to art.104 paragraph (2) of the Labor Code, the attraction to additional work may be ordered of the employer without the employee's consent:

 

a) for carrying out the necessary works for the defense of the country, for the prevention of a production damage or to remove the consequences of a production failure or a natural calamities;

 

b) for carrying out the works necessary to remove situations that could endanger the good operation of water and electricity supply services, sewerage, postal services, telecommunications and informatics, means of communication and public transport, fuel distribution facilities, medical units.

 

Also, according to the provisions of art. 2 of the Convention of the International Organization of Labor on forced or compulsory labor, adopted at Geneva on 28 June 1930, ratified by Parliament Decision no. 610 of October 1, 1999 (in force for the Republic of Moldova from March 23, 2001), the term forced or compulsory labor will not include, for the purposes of this Conventions:

 

a) any work or service required under the laws on compulsory military service and intended for purely military works;

 

b) any work or service forming part of the normal civic obligations of the citizens of a fully independent countries;

 

c) any work or service claimed by an individual as a result of a pronounced conviction by a court decision, provided that this work or service is performed under supervision and control of public authorities and that the said individual is not assigned or placed in custody the disposition of private individuals, companies or legal entities;

 

d) any work or service required in cases of force majeure, ie in case of war, catastrophes or danger of catastrophes such as: fire, floods, famines, earthquakes, violent epidemics and epizootics, invasions of harmful animals, insects or plant parasites, and in general, any circumstances that endanger or endanger life or conditions normal existence of the whole population or a part of the population;

 

e) the small works from the village, ie the works executed in the direct interest of the community of to its members, works which, therefore, can be considered as normal civic obligations, which return members of the community, provided that the population itself or its direct representatives have the right to rule on the fairness of such work.

 

At the same time, forced labor does not specify what is to be understood by the notion of “labor forced or compulsory ”and the various instruments of the Council of Europe do not give any further guidance on this issue. However, such a definition can be found in the acts of the International Labor Organization, to which all states are members from the Council of Europe. 

 

They define forced labor as any imposed work or service to a person under threat of a sanction and for whom the person concerned did not give previously, implicitly or explicitly, consent.

 

[Point 9 amended by the Decision of the SCJ Plenum of the Republic of Moldova no. 34 of 04.12.2017]

 

10. When examining disputes concerning the temporary change of place and specificity of work, carried out in accordance with the legal provisions, the court must take into account that the refusal of the employee to perform the necessary work may be considered a violation of work discipline, and unjustified absence from work may result in dismissal of the employee.

 

At the same time, it should be noted that, pursuant to art.225 paragraph (7) of the Labor Code, the refusal the employee to perform work in case of danger to his life or health from due to non-compliance with occupational safety and health requirements or to perform work under conditions heavy, harmful and / or dangerous that are not provided in the individual employment contract no attracts disciplinary liability.

 

The employee 's right to refuse to carry out work in the event of a danger to his life or health is also provided by art.20 of the Law on safety and health at work no.186 from 10.07.2008.

 

The job can be temporarily changed by the employer by moving in the interest of service or secondment of the employee to another job in accordance with art.70 and 71 of the Code work.

 

During the trip for work or secondment to another job, the employee maintains the position, the average salary and other rights provided by the collective agreement and by the individual labor (art. 69 Labor Code).

 

11. Transfer of the employee to another permanent job within the same unit, with modification of the individual employment contract, as well as employment by transfer to a job permanent to another unit or transfer to another locality together with the unit, are allowed only with the written consent of the parties (art. 74 Labor Code).

 

The employee who, according to the medical certificate, needs to be given a lighter job he is to be transferred, with his written consent, to another job that is not his contraindicated.

 

If the employee refuses this transfer, the individual employment contract is terminated in accordance with the provisions of art.86 paragraph (1) letter x). If a suitable job is missing, the individual employment contract will be terminated pursuant to art.86 paragraph (1) letter d).

 In case of transfer, the parties will make the necessary changes to the individual employment contract according to art.68 of the Labor Code, based on the order (disposition, decision) issued by the employer who informs the employee, under signature, within 3 working days.

 It is not considered a transfer and does not require the employee's consent to be exchanged within the framework the same units at another place of work, in another subdivision of the unit located in the same locality, the task of carrying out work on another mechanism or aggregate within the limits of the specialty, qualification or the position specified in the individual employment contract.

 In case of permutation, the employer issues an order (disposition,decision) which is brought to the employee’s notice, signed, within 3 working days. The employee's refusal to execute the permutation order is considered a violation of discipline which may result in disciplinary action.

 Suspension of the individual employment contract

12. The provisions of art. 75 of the Labor Code stipulates that the suspension of the individual contract may intervene in circumstances that do not depend on the will of the parties (art. 76 of the Labor Code), by the agreement of the parties (art. 77 of the Labor Code) or at the initiative of one of the parties (art. 78 of the Labor Code).

 

The suspension of the individual employment contract implies the suspension of the performance of the work of the employee and the payment of salary rights (salary, bonuses, other payments) by the employer.

 Throughout the suspension of the individual employment contract, the rights and obligations parties, in addition to salary rights, continue to exist if the normative acts in force, by collective agreements, by collective agreement and by individual employment contract is not provided otherwise.

 Suspension of the individual employment contract, except for the cases provided in art.76 letters a) and b) - maternity leave, illness or trauma, is made by order (disposition, decision) of the employer, which is brought to the notice of the employee, under signature, at the latest on the date of suspension.

 Disputes related to the suspension of the individual employment contract are resolved in the manner established at art.354-356 Labor Code.

Termination of the individual employment contract

 

13. According to art.81 CM, the individual employment contract may terminate:

 

- in circumstances that do not depend on the will of the parties (art. 82, 305 and 310);

 - at the initiative of one of the parties (art. 85 and 86).

In all the cases mentioned, the day of termination of the individual employment contract is considered the last day of work. The individual employment contract terminates on the basis of the order (disposition, decision) of the employer, which is brought to the employee’s notice, signed, at the latest on dismissal. 

 

Termination of the individual employment contract will have the consequence termination of employment relations between employer and employee, with all the effects established by law. The employee's refusal to confirm by signature the communication of the order will be fixed in a

minutes signed by a representative of the employer and a representative of the employees.

 

Termination of the individual employment contract in circumstances

which do not depend on the will of the parties (art. 82, 305 and 310)

 

14. Article 82 of the Labor Code provides for cases of termination of the individual contract of work in circumstances beyond the control of the parties. Thus, the individual employment contract may cease in case of:

 

a) death of the employee, declaration of his death or disappearance without a trace by decision of the court;

 

b) death of the natural person employer, declaration of his death or disappearance without follow-up by court decision;

 c) finding of the nullity of the contract by decision of the court - from the date the finality of the respective decision, except for the cases provided in art. 84 paragraph (3);

 d) withdrawal, by the competent authorities, of the activity authorization (license) a of the unit - from the date of its withdrawal;

 d.1) withdrawal, by the competent authorities, of the authorization (license), the permit, which gives the employee the right to work in a particular profession, trade or to perform a certain work - from the date of withdrawal of the respective act;

 e) application of the criminal punishment to the employee, by decision of the court, which excludes the possibility to continue working at the unit - from the date of the final decision judicial;

 f) expiration of the term of the individual fixed-term employment contract - from the date stipulated in the contract, unless the employment relationship actually continues and neither one of the parties did not request their termination, as well as the case provided for in Article 83 paragraph (3);

 g) completion of the work provided by the individual employment contract concluded for the period of accomplishing a certain work;

 h) end of the season, in case of individual employment contract for fulfillment seasonal works;

 i) reaching the age of 65 by the head of the state unit, including municipal, or of the unit with majority state capital;

 j) force majeure, confirmed in the established manner, which excludes the possibility of continuation labor relations;

 j.1) reinstatement at work, according to the decision of the court, of the person who has previously performed the respective work, if the transfer of the employee to another work, according to this code is not possible;

 k) other grounds provided in art. 305 and 310.

When examining the legality of the act of termination of the individual employment contract in circumstances that do not depend on the will of the parties, the existence and incidence of the circumstances will be verified.

The provisions of the Labor Code refer to force majeure, but do not define it. Force majeure is formulated by the Conventions of the International Labor Organization as exceptional / abnormal, unpredictable events / circumstances / circumstances.Events exceptional must be:

 - foreign to the activity of the parties to the employment contract;

 - impossible to predict, abnormal, exceptional (and not periodic);

 - impossible to prevent, to avoid.

 [Point 14 completed by the Decision of the Plenum of the SCJ of the Republic of Moldova no. 34 of 04.12.2017]

 Termination of the individual employment contract from employee's initiative (resignation)

15. The termination of the individual employment contract at the initiative of the employee takes place through his resignation (art. 85 Labor Code).

The employee has the right to resign, notifying the employer, by written request, with 14 calendar days in advance. The head of the unit (branch or representative office), his deputies and the chief accountant shall be entitled to resign until the expiry of the term of the individual contract work in the cases stipulated by the contract, notifying the employer, by written request, within a month before.

This means that the written request must be submitted in no less than 14 days (one month) before release, but may also contain more than 14 days (one month) before release. The employee of the religious association has the right to resign, warning the employer, in writing, at least 7 calendar days in advance.

The employee who concluded an individual employment contract with a natural person employer is required to notify him about his resignation at least 7 calendar days before. The expiry of that period shall begin on the day immediately following that on which it was effected registered application.

 [Point 15 completed by the Decision of the Plenum of the SCJ of the Republic of Moldova no. 34 of 04.12.2017]

16. In case of resignation of the employee in connection with retirement, with the establishment of the degree of disability, with childcare leave, with enrollment in an institution of education, with the transfer to another locality, with the care of the child until the age of 14 or of the disabled child, with the election in an elective position, with the employment by competition to another unit, in violation of the individual and / or collective employment contract by the employer, according to the labor legislation in force, the employer is obliged to accept the resignation within the indicated short term in the application submitted and registered, to which the respective document confirming this is attached law (art.85 para. (2) Labor Code).

17. Until the expiration of the indicated terms, the employee has the right to withdraw his application at any time or to submit a new application, by which to cancel the first one. In this case, the employer is in the right to release the employee only if, until the withdrawal (cancellation) of the submitted application, concluded an individual employment contract with another employee under the conditions of this code.

The employee has the right to terminate the individual employment contract at any time. Written request regarding the employee's resignation is mandatory. The employee's verbal statement cannot serve as a basis for issuance of the resignation order.

The last day of paid work is recognized as the day dismissal. In this context, the withdrawal of the resignation request on this day will also be accepted, regardless of the fact that the resignation certificate was issued and the employee was paid salary rights.

The need to request the termination of the individual employment contract may arise at employee not only during the activity, but also when it is certain reasons he is absent from work (during his time on sick leave, in annual leave, on study leave, on maternity leave, on partial leave paid for childcare up to the age of 3, in unpaid additional leave for care of a child aged 3 to 6 years, during the fulfillment of state obligations or public service, service or secondment). 

By notifying the employer in writing about the termination of the contract, thus, the employee is offered this possibility and it does not matter whether he is at work or not. If the employee requests resignation before expiration of the legal term, and the employer agrees, then the dismissal is made in the period required by the employee.

As shown, according to art.85 paragraph (4) of the Labor Code, until the expiration of the terms indicated, the employee has the right at any time to withdraw his application or to submit a new application, by which to cancel the first one.

After the expiration of the terms, the employee has the right to stop working, and the employer is obliged to make the full payment of the salary rights due to the employee and to issue the workbook and other documents related to his / her activity in the unit. None reason (for example, completion of the work started, debts to the employer) can not serve as basis for refusing the employee in this.

If, after the expiry of the indicated periods, the employee has not in fact been dismissed and he continues his work without reaffirming in writing his desire to terminate the contract individual work, his release / resignation is not allowed.

The employer is entitled to terminate the individual employment contract upon expiration of the legal term of termination of the contract, even if the employee became ill in prevention period and continues to be on sick leave at the end of the notice period, because the medical leave does not suspend the term after which the employee is subject to dismissal.

Submission of the application for termination of the individual employment contract on one's own initiative does not always contain, however, the real will of the employee to terminate the employment relationship.

Thus, at examination of the cases having as object the declaration of the nullity of the resignation act, the court will verify, based on the evidence presented, whether the will expressed in the resignation request coincides with the real will of the employee. In the event that the applicant claims that the resignation request was at the insistence of the employer, this circumstance will be subject to verification, and the duty to prove it will belong to the plaintiff.

 Termination of the individual employment contract at the initiative of the employer (dismissal)

18. According to art.86 Labor Code, termination of the individual employment contract at the initiative occurs in limited circumstances, which may be due to attributable causes of employee or not related to the employee's fault, as well as in some situations related to the activity of the employer and for other reasons provided by the labor legislation. Unpacking from the initiative of the employer of the individual employment contract of indefinite duration, as well as the fixed term includes the reasons that apply to all employees, as well as the reasons that apply only to a certain category of employees.

Article 86 of the Labor Code (with the additions and modifications operated) establishes the following grounds for termination of the individual employment contract at the initiative of the employer:

a) the unsatisfactory result of the probationary period (art. 63 para. (2));

Relevant circumstance for pronouncing a correct decision in case of dismissal from this reason serves the fact that the act of dismissal of the employee is to be issued by the employer until the expiration of the probationary period, without the payment of the severance pay.

If the order is issued after the expiry of the probationary period, it shall be considered null and void, for the reason that the non-dismissal until the expiration of the probationary term is considered as a tacit agreement for the continued activity of the employee.

 b) liquidation of the unit or cessation of the activity of the natural person employer;

Labor law does not contain the notion of "liquidation of unity." Therefore, when solving the norms of the civil code, which determine the liquidation of the person, will be applied to these litigations legal. The decision serves the dismissal of the employee in connection with the liquidation of the unit, the competent body for liquidating the unit or the decision of the court. Liquidation of the unit attracts the dismissal of all its employees. Thus, the court is going to check if it had placed the liquidation of the unit and not its reorganization, dismemberment or transformation.

In case of liquidation of the unit, the employer is obliged to issue an order (disposition, decision, decision) on the liquidation of the unit and to give notice, under signature, to the employee by 2 months before liquidating the unit, giving the employee at least one day off per week, with maintaining the average salary, in search of another job (art. 184 CM).

According to art.287 of the Labor Code, the employer is obliged to give prior notice to the employee, in written form, under signature, about the imminent dismissal from service (art. 82 letter f) and art.86) at least 7 calendar days before.

According to art.186 paragraph (1) of the Labor Code, the dismissed employees in connection with the liquidation unit or with the cessation of the activity of the natural person employer (art. 86 par. (1) letter b) they are guarantees:

 - for the first month, the payment of a severance pay equal to the amount sum of an average weekly salary for each year worked at the unit in question, but no more lower than an average monthly salary. If the unit was the legal successor of a unit previously reorganized and the individual employment contract with the employees in question has not previously ended (art. 81), all the years of activity will be taken into account;

 - for the second month, the payment of a severance pay equal to the amount the average monthly salary if the dismissed person was not placed in employment;

 - for the third month, the payment of a severance pay equal to the amount the average monthly salary if, after dismissal, the employee registered within 14 days calendar to the territorial employment agency as unemployed and was not placed in the field of work, fact confirmed by the respective certificate;

Upon liquidation of the unit, by written agreement of the parties, full payment of the amounts related to the dismissal of the employee for all 3 months is made on the date of dismissal. In case of placement of the person dismissed during the second and third months, the allowance will be paid on the period until the date of its employment.

With the written consent of the employee, the employer is entitled to terminate the individual contract and before the expiry of the two-month period.

Conditions for terminating the individual employment contract at the initiative of the employer on reason for liquidation of the unit also applies in cases of liquidation of the branch or representation of the person legally.

If the employee was fired without a legal basis or in violation of the order of laid off, but his restoration to his previous job is impossible due to cessation of the activity of the enterprise, institution, organization, the court recognizes illegal dismissal, obliges the liquidation commission or the body that adopted the decision on liquidation of the enterprise, institution, organization, and in those cases on its successor rights, to pay the employee the salary for the forced absence. At the same time, the court will recognize the dismissed employee in connection with the liquidation of the unit or the termination of the activity of the natural person employer.

 c) reduction of the number or staff numbers in the unit;

Dismissal of the employee in connection with the reduction of the number or staffing of a unit takes place if it is not possible to transfer the employee with his consent to another place of work (function) within the respective unit. Termination of the individual employment contract is possible provided that the employee did not have the preferential right to be left to work. 

Conformable art.183 of the Labor Code, in case of reduction of the number or of the personnel states, by law preferentially to be left to work benefits employees with a qualification and labor productivity taller.

In the case of equal qualification and labor productivity, the preferential right to be left at work they have:

- employees with family obligations, who support two or more persons and / or one person with disabilities;

- employees in whose family there are no other persons with independent income;

- employees who have a longer seniority in the respective unit;

- employees who have suffered a work accident in the respective unit or have contracted a occupational disease;

- employees who raise their qualification in higher and secondary education institutions specialty, without decommissioning;

 - people with disabilities, from the war and members of the military, fallen or disappeared without a trace;

 - participants in the actions for the defense of territorial integrity and independence Of the Republic of Moldova;

 - inventors;

 - persons who have become ill or have suffered from actinic disease and other diseases caused by radiation following the Cemobil damage; persons with disabilities, in respect of whom the causal relationship between the occurrence of disability and damage from C.A.E. Chernobyl, the participants in the liquidation of the consequences of damage to the C.A.E. Chernobyl, in the alienation zone, in the years 1986-1990;

 - employees who have more incentives for success at work and have no sanctions disciplinary (art.211 Labor Code);

 - employees who have at most 5 years left until the establishment of the pension for the limit of age.

If some people meet certain criteria, the preferential right to be left to this belongs to people who meet more criteria compared to other people. In case of equality of the number of criteria, the preferential right belongs to the person who has a greater seniority in the unit.

Therefore, the termination of the individual employment contract due to the reduction of the number or of staff in the unit is valid under the following conditions:

 - the reduction of the number or number of staff to take place in real time. This is to be confirmed by the order on the reduction of the number of personnel and the approval of the new states of personal.

It should be noted that the new staff lists are to be approved before the start events related to the reduction of the number of staff;

 - the employee does not have the preferential right to be left to work. When deciding on the preferential right to be left to work, the provisions of art.183 are to be taken into account in the Labor Code. If several employees claim a vacancy, then the rule's preferential duty will not apply. In this case only the employer has the right to decide to whom of employees to be dismissed in connection with the reduction in the number of staff in units to propose the vacancy by transfer, taking into account at the same time the requirements of art. 49 par. (1) Labor Code regarding the specialty, profession, qualification, position of the applicants;

 - the employee has been notified of the reduction in the number or number of staff in unit 2 months before the reduction, giving the employee to be fired one day worker per week with the maintenance of the average salary for looking for another job;

 - the termination of the individual employment contract was made with the prior consultation of the trade union body in the unit (art. 87 CM). If, after the expiration of the 2-month notice period, the order has not been issued (disposition, decision, decision) of dismissal of the employee, this procedure cannot be repeated within the same calendar year. The notice period does not include the notice period of the employee in the annual rest leave, in the study leave and in the medical leave.

Reduced employment cannot be restored in the states of the unit during the year calendar in which the dismissal of the employee took place, which he occupied.

 d) finding that the employee does not correspond to the position held or the work performed due to the state of health, in accordance with the medical certificate;

In accordance with art. 13 letter m) of the Law on safety and health at work no. 186 of 10 July 2008, the employer is obliged to perform the periodic medical examination and, as the case may be, the testing of periodic psychological treatment of workers. Article 20 letter h) of the mentioned Law stipulates that each worker is entitled to undergo an extraordinary medical examination according to the recommendations with the maintenance of the job and the average salary during this performance exam. The central specialized body that coordinates occupational safety and health is the Ministry of Labor, Social Protection and Family.

In case of termination of the individual employment contract for the reason shown it is necessary to present the medical conclusion issued by the authorized institution. Also the mismatch of the employee of the position held can be detected as a result of the periodic, legal medical control established or in the case of a random check.

At the same time, it should be noted that the employer is to present evidence that the condition of the health of the employee in accordance with the medical certificate prevents the employee from properly performing the duty of service, is prohibited or is dangerous to other employees or for the citizens it serves.

Between the employee 's state of health and the impossibility of exercising the function held or the work performed must be a report of causality. In such cases, the employer is obliged to ensure the transfer of the employee, with his written consent to another work, which is not contraindicated.

If the employee refuses to transfer to another job corresponding to his state of health, the individual employment contract is terminated in connection with the employee's refusal to be transferred to another work for health reasons, according to the medical certificate. If the company lacks another suitable job, to which the employee could be transferred, the individual employment contract will be terminated.

 e) finding that the employee does not correspond to the positions held or the work performed due to insufficient qualification, established following the attestation performed, as required by Government;

When terminating the individual employment contract due to functional non-compliance held as a result of insufficient qualification, the court will take into account the fact that they are dismissed only if the insufficient qualification is established following the attestation performed, in the module evaluated by the Government.

Given this, the employer is not entitled to dismiss the employee for this reason without the employee having been certified in the manner presented by the documents legislation and / or regulations in force, including most of the unit-level employer according to art.10 par. (1) letter e) Labor Code or if the attestation commission concluded that the employee corresponds to the positions held or the work performed.

Dismissal in connection with the detection / detection of non-compliance with the position held allows only if the employer has proposed to the employee or other necessary work, and the latter refused the transfer. When examining such disputes, the employer is obliged to present evidence confirming that the employee refused to be transferred to another job or the employer did not have the opportunity to offer the employee another job.

Dismissal of union members can only take place with prior consultation with the trade union body (organizer) of the unit. 

 f) change of owner of the unit (regarding the head of the unit, his deputies, of the Chief Accountant);

The court will take into account that he fired for this reason can only take place in this regard the head of the unit, his deputies, the chief accountant. At the same time, it is to be taken into account consideration that the dismissal can take place only in case of changes of the owner of the property organization in general.

Changing the form of organization does not require the creation of a new legal person. This change may occur as a result of privatization, sale or otherwise alienating the unit. The people shown cannot be fired for any reason, change of unit owner in case of change of jurisdiction of organization of the unit over time what Ioc did not have was the change of ownership of the unit's property. 

g) repeated violation, during a year, of work obligations, if they have previously disciplinary sanctions were applied;

 

This point allows the dismissal of the employee only in case of repeated violation, during one year, of work obligations. It must be understood that the disciplinary sanction applied previously on the date of the repeated violation was not revoked, the disciplinary sanction was applied by the competent body in compliance with the application method, etc. (art.211 Labor Code).

Thus, on dismissal of the employee due to repeated heating of work obligations, the court will verify whether the repeated application of disciplinary sanctions the employer has taken into account the seriousness of the disciplinary violation committed and other objective circumstances, if observed the term of application of disciplinary sanctions, if dismissed took place in consultation prior notice of the trade union body, etc., i.e. compliance with the provisions of art. 206-211 of the Labor Code.

If the court finds that the disciplinary sanction was applied in violation of the law, this conclusion is to be motivated in the decision. The court's conclusion is also to be motivated on the correctness of the previously applied sanction, whether or not it has been challenged by the employee.

Upon termination of the individual employment contract for repeated violation during a year, of the work obligations, notifying the employee about the termination of the individual contract of work is not mandatory.  

h) absence without good reason from work for 4 consecutive hours (without taking into account lunch break) during the working day;

Dismissal for this reason, in particular, may take place for unjustified absence from the place working for 4 consecutive hours (regardless of lunch break). When examining these litigation, the court will consider the following:

 - the time of the lunch break will not be taken into account for the calculation of the 4 consecutive hours;

 - the dismissal due to objective circumstances cannot be considered as grounds for dismissal, independent of the employee's will (for example: illness, although not presented medical certificate, but it is established with certainty that the person was ill);

Failure to appear at the service where:

- the employee was transferred in violation of the law;

- non-appearance at work of a woman with children aged three to fourteen years (disabled children up to 16 years) who refused to do the work related to travel permanent;

- non-appearance at work on the day off that was announced as a worker with the violation labor legislation;

- failure to present the employee at work after the employer has issued the order of reinstatement until the resolution of the dispute over reinstatement, arrest the employee for not too serious hooliganism;

- evading the activity that is not directly related to the work obligations of the employee (for example, non-attendance at public activities).

Absence from work for more than four hours during the working day, which entitles him the employer to terminate the employment contract on this basis, it is considered the unmotivated finding of the employee outside the territory of the unit, with which he is in an employment relationship, or outside the territory the object, where he must perform the work entrusted to him in accordance with the obligations of the work.

Unexcused absence from work is also considered the departure of the employee without the order administration / employer on annual leave, on unpaid leave, on leave additional annual rest, study leave, misuse of recovery days, abandonment of work until the expiration of the action of the employment contract concluded on a certain term.

When resolving disputes regarding the modification of the date of dismissal, the collection of the salary for forced absence from work, will take into account the fact that the action of the individual contract ceases from the first day on which the employee did not show up for work.

If during examination of the dispute concerning the reinstatement of the dismissed person for the absence of service and the collection of the salary for the forced absence will be found that the absence from work was caused by an unfounded cause, and the administration violated the manner of dismissal, the court of trial, to meet the requirements, will take into account that the worker's salary restored in such cases may be collected from the day of issue of the dismissal order, but not from the first day of absence from work, because only from this time the absence is forced.

If in the course of the dispute over the reinstatement of the person, dismissed in based on Article 86 paragraph (1) letter h) of the Labor Code, the court will find that as a pretext for the dismissal of the employee served his non-appearance at work or the refusal to continue the activity in connection with the change in the essential working conditions caused by the change in the clauses individual employment contract, and the employee does not agree to continue working in the new conditions, the court, on its own initiative, modifies the grounds for dismissal in in accordance with art.86 letters v), x), y) Labor Code.

According to art.122 of the Labor Code, the employee can be recalled from leave only with the consent expressed in writing, and for these reasons it follows that the employee's refusal to fulfill the order of the unit to return to work during the leave period can not be considered a violation of work discipline, respectively dismissal ordered based on this ground in fact, the legal classification at art.86 paragraph (1) letter h) CM will be considered null.

i) presentation at work in a state of alcoholic, narcotic or toxic intoxication, established in the manner provided in art.76 letter k).

For presentation at work in a state of alcoholic, narcotic or toxic intoxication can be dismiss employees who were in that condition at work and during the exercise duties, regardless of whether the employee has evaded performing them attributions in relation to the state in which it was or whether or not it was removed from the execution job duties in connection with intoxication.

For employees working in the conditions of the global record of the working time according to art.99 Labor Code - all the time of their time at work is considered working time.

Alcoholic, narcotic or toxic intoxication can only be confirmed by the certificate issued by the competent medical institution or by the act of the commission formed by an equal number of representatives of the employer and the employee (art. 76 letter k) CM), other evidence being inadmissible.

j) committing a contravention or crime against the patrimony of the unit, established by the decision of the court or by the act of the body, whose competence it has to apply contravention sanctions; 

Judging the cases regarding the litigations regarding the termination of the individual employment contract in connection with the commission of a contravention or crime against the patrimony of the unit, the courts take into account that employees may be dismissed on this basis, the guilt of which was ascertained by the decision, respectively the sentence entered into force by the court or in respect of which a decision of a competent body has been adopted on application of the contravention sanction.

Termination of the individual employment contract based on the mentioned norm can also take place in case of committing a contravention or crime against the patrimony of the unit, where the employee was sent for the execution of a certain work. 

In these cases, it does not matter whether the theft was committed while working or outside of it. Conviction of the employee by the court to non-custodial sentences for committing a contravention or crime against property unity, for example, community service does not prevent his dismissal from the base the above-mentioned basis.

k) committing by the employee who directly manages funds or valuables materials or who has access to the employer 's information systems (collection systems and information management) or those administered by the employer of culpable actions, if these actions can serve as a basis for the loss of the employer's trust in the employee respectively;

Based on letter k) paragraph (1) of art.86, two categories of employees can be dismissed: employees who directly handle funds or material values, as well as employees who have access to employer information systems (information collection and management systems) or at those administered by the employer, provided that they have committed certain culpable actions, which may serve grounds for the loss of the employer's trust in the respective employees

In particular, the culpable actions of employees who manage money or valuables materials can be manifested by: receiving and / or releasing the goods, as well as the means money, without completing the appropriate documents, incorrect calculation or use, for purposes personal, money collected, concealment of goods, to buyers, use, for purposes personal property, employer scams, scams, unauthorized price increases, receiving payment for the services performed, without issuing the respective documents, the violation rules for the marketing of spirits and tobacco production, realization medicines, narcotics, over-the-counter (if required), etc.

It is important that in the case of employees who directly handle money or valuables materials, subjects of dismissal are both employees with whom a contract is concluded full material liability for not ensuring the integrity of the goods and other values ​​that have them were sent for storage or other purposes (art.339) and those who received the goods and others values, for settlement, on the basis of a single power of attorney or on the basis of other single documents, as well as those to whom the unit has issued, in use, materials, semi-finished products, products (production), including during their manufacture, as well as instruments, measuring instruments, calculation techniques, protective equipment and other objects, if damage has been caused by failure, intentional destruction or damage.

If it is found, in the manner provided by law, that an act of theft has been committed, taking of bribery or other hoarding crimes, these employees may be dismissed because of loss of confidence in them and in the situation when these actions are not directly related to work there.

If the material responsibility is borne by a brigade, the fact of finding the lack of valuable materials can serve as a basis for dismissal of the brigade member due to loss of trust only if it is found that he is guilty of this lack. If the employee refused to conclude the contract of full material liability in order to preserve the material values, the courts will proceed from the conditions of the contract for work.

If the execution of the obligations of administration of material values ​​constitutes for employee his main job function, which is mentioned during employment and, in in accordance with the legislation in force, a contract of liability was to be concluded with him full, unjustified refusal to enter into such a contract shall be deemed to be just non-performance of work obligations with all the consequences that result from it.

As examples of loss of confidence in employees who have access to systems information systems of the employer (information collection and management systems) or to those administered by the employer, may serve to disclose confidential information to competitors or committing acts that subject the employer to certain material risks, such as destruction database on the employer 's customers, both of which have far more serious consequences than stealing insignificant sums of money.

k.1) violation of the obligation, provided in art.6 paragraph (2) letter a) of Law no.325 of 23 December 2013 on the assessment of institutional integrity;

l) repeated serious violation, during a year, of the status of the educational institution of a teacher (art. 301);

In addition to the general grounds provided by this code, the individual employment contract concluded with teachers may cease for the serious violation, repeated during a year, the status of the educational institution. The notion of serious violation of the status of the educational institution must be provided in status. In the absence of a status in the concept, the infringement may be considered as serious by the management of the educational unit or by another body that is specified in the statute educational institution.

The court will take into account that, according to the indicated basis, they can only dismiss employees who carry out pedagogical (didactic) activities in education. Employees who exercise pedagogical / didactic activities in the education system refer to the teaching staff, the staff scientific-didactic and scientific staff working in public educational institutions or deprived of all levels specified in the Education Code no. 152 of July 17, 2014. Dismissal teachers can take place only in the case of repeated violation, during a year, the status of the institution. The violation is to be confirmed, as in other cases, by evidence respectively.

m) committing an immoral act by the employee who fulfills educational functions incompatible with the position held;

This reason for terminating the individual employment contract extends only in this respect to persons exercising educational functions (pedagogues, teachers of educational institutions) education of different levels, masters of production training in multipurpose schools and trades, educators of children's institutions, etc.).

It refers to the employee who performs educational functions, one who is part of the scientific staff working in public educational institutions or deprived of all levels specified in the Education Code no. 152 of July 17, 2014.

Dismissal of persons exercising those functions is possible only if the deed immoral is incompatible with the further employment of the employee in the position held.

n) the application, even once, by a teacher of physical violence or psychic towards disciples (art. 301);

As in the case of terminating the individual employment contract with a teacher for serious violation, during a year, of the status of the educational institution, it is considered as an additional ground for terminating the individual employment contract concluded with the teachers.

Physical or mental violence against disciples consists in the application of physical punishments in the form of beatings, torture, threats of beatings, mental intimidation of disciples, etc.

The employee can be fired in this case for the application, even once, of violence against disciples.

o) signature by the head of the unit (branch, subdivision), by his deputies or by the chief accountant of an unfounded legal act which caused material damage to the unit;

Termination of the individual employment contract for the reason indicated can only take place with the head of the unit (branch, subdivision), his deputies or the chief accounting officer and only with provided that the signing of the unit's act caused him damage. In case the employer will not be able to present evidence to confirm the cause of the damage to the unit, dismissal for this reason will be illegal.

Causing damages as a result of signing the documents to be confirmed by any evidence, including audit findings, by a decision judicial or by an act of internal control performed by the commission of censors or others duly appointed specialists.

p) serious violation, even once, of work obligations;

That reason for dismissal is applicable to all employees of the unit, regardless of the position held, including the head of the unit, his deputies or the chief accountant.

This grounds for dismissal from the CM (serious breach, even once, of obligations work) is to be examined jointly with art.2111 CM, which defines the notion of "Serious breach of work obligations".

The actions listed by the legislator, in Article 2111 of the Labor Code, are exhaustive and cannot be completed by the employer.

r) presentation by the employee to the employer, at the conclusion of the individual contract of work, of some false documents (art.57 par. (1)), fact confirmed in the established way;

This circumstance serves as the basis for dismissal if, at the conclusion of the individual employment contract, the employee submitted false documents and provided the authentic documents to be submitted could have served as a ground for refusal concluding the individual employment contract.

In other words, the employee cannot be fired for the reason indicated if the documents submitted cannot serve as a basis for the refusal to be an employee. For example, if the employee submitted a false study document than not it is necessary to perform the work according to the individual employment contract and the employer does not request this document.

s) concluding, aiming at the employees who perform the work by cumulation, an individual contract work with another person who will exercise that profession, specialty or function as profession, specialty or basic position (art.273);

In addition to the general grounds for termination of the individual employment contract, the contract concluded with the employee who performs work by cumulation may also cease in the case of concluding an individual employment contract with another person who will exercise his profession, specialty or the respective function as a profession, specialty or basic function. 

When terminating the individual employment contract with the employee employed by cumulation, in connection with the liquidation of the unit, with the reduction of the number or states of personnel or in case of closure an individual employment contract with another person who will exercise the profession (position) respectively as a basic profession (function), he is paid a severance pay from service in the amount of his average monthly salary.

 [Letter t) point 18 repealed by the Decision of the SCJ Plenum of the Republic of Moldova no. 34 of 04.12.2017]

 u) transfer of the employee to another unit with the consent of the transferred person and both employers; 

If the dismissal order is challenged on this ground, the court will verify the agreement written by both the employee and both employers. If it is established that the transfer of was made without the consent of the employee or one of the employers, the act of dismissal will be declared null.

v) the employee's refusal to continue working in connection with the change of owner unit or its reorganization, as well as the transfer of the unit to another body;

For the legal dismissal on this basis it is necessary the existence of one of the three causes invoked (change of owner; reorganization of the unit; transfer of the unit subordinated to another body), on the one hand, and the refusal (it is reasonable for it to be completed in written form of the employee to continue working in connection with one of these changes), on the other hand. 

At the same time, the court must take into account that, in accordance with the provisions of art. 64 paragraph (3) of the Code work, in case of reorganization or change of owner of the unit, the successor takes over all the rights and obligations existing at the time of reorganization or change of ownership.

Dismissal of employees in these cases is possible only on condition of reducing its number of the staff states in the unit.

x) the employee's refusal to be transferred to another job for health reasons, according to the medical certificate (art. 74 paragraph (2));

The employee who, according to the medical certificate, needs to be given a lighter job he is to be transferred, with his written consent, to another job that is not his contraindicated. If the employee refuses the transfer, the individual employment contract is terminated.

If a suitable job is missing, the individual employment contract will be dissolved on the basis of the finding that the employee does not correspond to the position held or the work provided due to health status, in accordance with the medical certificate.

y) the employee's refusal to be transferred to another locality in connection with the relocation of the unit in this locality (art.74 par. (1));

Transfer to another locality together with the unit is allowed only with the written consent of parties. The dismissal for this reason will take place if the employee does not accept the transfer in another locality in connection with the relocation of the unit to this locality, as well as whether indeed the unit was moved to another location.

y.1) holding by the employee the status of pensioner for old age.

z) for other reasons provided by this code and other legislative acts.

Other reasons for dismissal of the employee provided by the Labor Code may serve:

- dismissal of the head of the debtor unit in accordance with the legislation regarding insolvency (art. 263 Labor Code);

- termination of the individual employment contract with employees employed in seasonal works (art. 282 Labor Code);

- termination of the individual employment contract with the employees members of the diplomatic staff and consular officers seconded to the diplomatic missions and consular offices of the Republic of Moldova (art. 305 Labor Code).

Other reasons provided by various legislative acts also refer to:

- dismissal of the customs officer in the case of: the finding of the finding being final, by which it was established the issuance / adoption by him of an administrative act or the conclusion a legal act in violation of the legal provisions on conflict of interest; limitation, by final judgment, the right to perform the duties or in the case of the existence of criminal record; withdrawal of citizenship of the Republic of Moldova; being in one of the situations provided in art.6, art.43 paragraph (2) letter h.1) j) к) k.1) of the Law on service in the customs bodies no. 1150 of July 20, 2000);

- dismissal in case of withdrawal of personal trust granted to the employee in the office by the person with a position of public dignity (art. 9 paragraph (2) letter b) of the Law on the status of the staff of the cabinet of persons with positions of public dignity no. 80 of May 7, 2010);

- the release of the directors of the public educational institutions or of the persons they occupy scientific-didactic functions in higher education institutions (art.153 par. (1) and art.155 from Education Code no. 152 of July 17, 2014, etc.).

According to art.323 paragraph (1) of the Labor Code, employees who have concluded an individual contract work with military units, institutions or organizations of the Armed Forces or with those of public authorities in which the law provides for the performance of military or special service, as well as to the persons performing the civil service, the labor legislation is applied to them, with the particularities provided by the normative acts in force.

[Point 18 amended by the Decision of the SCJ Plenum of the Republic of Moldova no. 34 of 04.12.2017]

19. It is not allowed to dismiss the employee during his medical leave, in annual leave, on study leave, on maternity leave, on partial leave paid for childcare up to the age of 3, in unpaid additional leave for care of a child aged 3 to 4 years, during the fulfillment of state obligations or public, as well as during the secondment, except in cases of liquidation of the unit (art.86 paragraph (2) Labor Code).

According to art.251 of the Labor Code, it is forbidden to dismiss pregnant women, women who have children up to the age of 4 and people who use leave to care for provided for in art. 124, 126 and 127, except for the cases provided for in art. 86 paragraph (1) letter b), g) -k).

On the basis of all the grounds, provided by art.86 paragraph (1), the dismissal of the employees, members of the trade union, shall be carried out only with the prior consultation of the trade union body (organizer) from the unit.

Dismissal of the person elected to the trade union body and not released from the basic job is admitted in compliance with the general method of dismissal and only with the prior agreement of the trade union body of which the person concerned is a member. 

Leaders of the primary trade union organization (trade union organizers) not released from office basic work cannot be dismissed without the prior consent of the hierarchical trade union body superior.

Trade union bodies (trade union organizers), indicated in paragraphs (1) - (3) art.87 of the Code will communicate their agreement or disagreement (advisory opinion), argued in writing, regarding the dismissal of the employee, within 10 working days from the date of requesting the agreement (advisory opinion) by the employer.

Thus, when challenging the dismissal order, the court will verify whether it took place with the prior consultation of the trade union body (organizer) or, as the case may be, with the agreement of the trade union body in the unit. If the dismissal took place without prior consultation or in the cases provided by law, without the consent of the trade union body, the act of dismissal will be considered illegal, with the reinstatement of the employee at work.

According to art.184 of the Labor Code, the employer is obliged to give notice to the employee, by order (disposition, decision, decision), under signature, about his intention to terminate the individual contract concluded for an indefinite or indefinite period, within the following deadlines:

a) 2 months in advance - in case of dismissal in connection with the liquidation of the unit or the termination the activity of the natural person employer, the reduction of the number or of the staff lists per unit (art.86 paragraph (1) letters b) and c));

b) one month in advance - in case of dismissal in connection with the finding that the employee does not correspond to the position held or the work performed due to insufficient qualification confirmed by the decision of the attestation commission (art. 86 para. (1) letter e)). Upon termination of the individual employment contract as a result of the violation by the employee of its work obligations (art. 86 para. (1) letters g) -k), m), o) -r)), the notice is not mandatory.

[Point 19 amended by the Decision of the SCJ Plenum of the Republic of Moldova no. 34 of 04.12.2017]

Additional grounds for termination of the individual employment contract

20. For some categories of employees, the Labor Code provides other additional grounds for the termination of the individual employment contract.

Thus, according to art.263 of the Labor Code, the individual employment contract concluded with the head of unit may cease if:

a) dismissal of the head of the debtor unit in accordance with the legislation with insolvency;

b) issuance by the authorized body or the owner of the unit of the order (disposition, decision, decision) legally grounded for termination of the individual employment contract before term; as well as

c) in other cases provided by the individual employment contract. 

The legislator does not expressly define either the list of additional grounds or the nature of the reasons for the termination of the individual employment contract with the head of the unit. Into this connection, in each specific case these grounds shall be established by agreement of the parties in the labor contract.

Termination of the individual employment contract with the leader of the unit will be legal if the very additional ground for termination of the individual contract of work will be formulated clearly, concretely and with certainty. In other words, it needs to be clearly for which deeds committed the termination of the individual employment contract took place.

In case of termination of the individual employment contract concluded with the head of the unit in the basis of the order (disposition, decision, decision) of the authorized body or of the owner of the unit (art.263 letter b)), in the absence of guilty actions or inactions, the manager is notified in writing one month in advance and he is paid compensation for the termination of the individual employment contract ahead of schedule, in the amount of at least 3 average monthly salaries.

The concrete size of compensation is established in the individual employment contract. As an additional ground for termination of the individual employment contract concluded with the staff teaching, in addition to a serious breach, repeated during a year, of the status of the institution of education (art. 86 para. (1) letter l) and application, even once, of physical or mental violence compared to the disciples (art. 86 par. (1) letter n), is also the establishment of the pension for the age limit.

To termination of the individual employment contract in connection with the establishment of the old-age pension it is not necessary to notify the employee (Advisory opinion of the Plenum of the Supreme Court of Justice regarding the application of art.301 paragraph (1) letter c) of the Labor Code of March 4, 2013).

The individual employment contract concluded with the staff of the organizations in the field of science and innovation may cease on the following additional grounds:

a) loss of the competition for the scientific and management positions provided by the status of the respective organization; 

b) non-attestation, in accordance with the statute of the respective organization, of scientific researchers, workers in enterprises, institutions and auxiliary service and administration organizations of scientific activity;

According to art.310 of the Labor Code, in addition to the general grounds provided by this code, the individual employment contract concluded with the employee of the religious association may be terminated in the additional grounds provided by the contract (art. 82 letter j) - force majeure, confirmed in the module established, which excludes the possibility of continuing employment.

The notice period a to the employee of the religious association regarding the dismissal from the service on the grounds provided by the individual employment contract, as well as the manner and conditions for granting guarantees and compensation in case of dismissal, are established in the individual employment contract.

[Point 20 amended by the Decision of the SCJ Plenum of the Republic of Moldova no. 34 of 04.12.2017]

21. If in resolving disputes for annulment of the act of dismissal and reinstatement of the employee the court will find that there was grounds for termination of the individual contract of work, but in the act of dismissal the reasons for dismissal were misspelled, then the court is entitled to determine the wording of the grounds in accordance with labor law, taking taking into account the real circumstances that served as the basis for the dismissal.

Restoration of the employee with whom an individual employment contract was concluded for a certain period is possible only within the time limits indicated in the contract. If at the time of the judgment, the term of contractual action has expired, the court will order the modification of the reason for dismissal and the modification of the registration in the work book.

If the employee was dismissed before the expiry of the notice period, in disputes for termination of the individual employment contract for which the employee's notice is expressly provided, the court will change the date of dismissal. 

When examining litigations for the termination of the individual employment contract from the initiative of the employer (dismissal), the court will also be governed by the provisions of the Convention regarding the termination of employment relations at the initiative of the employer no. 158 of 22.06.82, ratified by the Decision of the Parliament no.994 of 15.10.96 (in force from 21.11.1996).

It should be noted that in examining the causes of termination of the individual employment contract at the initiative of the employer, it has the duty to prove the presence of the legal basis for dismissal of the employer.

Peculiarities of the examination of individual labor disputes in the contentious procedure administrative

22. An important issue that requires further research is the category of subjects - part of individual labor disputes which, in accordance with the legislation in force, are examined in the administrative contentious procedure.

By definition, individual labor dispute is a legal conflict in the field labor regulation that can be solved in the manner established by law, of which the parties are the employee and the employer, and whose content constitutes the rights, obligations and interests of the parties individual employment relationship, which cannot be exercised due to unresolved differences between the parties.

According to art. 5 of the Law on Administrative Litigation, there are subjects with the right to notify the administrative contentious person, including the civil servant, the military, the person with status in the military.

The employee of the public domain, according to the definition of the Law on the civil service and the status of civil servant no. 158 of 04.07.2008, is the person who holds a state position remunerated and having ranks and ranks, as well as the person in charge who is the civil servant invested with attributions in order to exercise the functions of public authorities or administrative dispositions.

According to art.68 of the mentioned Law, the causes that have as object the service relations are of the jurisdiction of the administrative contentious courts, except for the situations for which it is expressly established by law the jurisdiction of other courts.

Annex no. 1 of the Law stipulates the public authorities that fall under the incidence of the Law on civil service and the status of civil servant. Legal regulation related to the settlement of individual labor disputes of the category of employees who are part of the public domain is incomplete. A first task of the court of judgment is to clarify the affiliation of employees who work in the field to the category of individual labor disputes.

The right of civil servants to settle individual labor disputes derives from art.5 itself from the Labor Code itself, which ensures to all employees, without exception, the right to resolving individual labor disputes.

The category of individual labor disputes emerges, also from the labor legislation which, first of all, defines the employer as an enterprise, institution or organization with the status of legal person, regardless of the type of property, in all secondly, it establishes in art.3 letter d) that the norms of the Labor Code apply to individual employers physical or legal persons in the public, private or mixed sector who use paid employment.

However, in order to obtain the quality of civil servant, the position held is not enough to a public authority, because the persons who provide a permanent service are civil servants to a public authority, without being a civil servant.

According to art. 4 of the Law on the civil service and the status of the civil servant, the provisions of this law shall apply to civil servants from the public authorities specified in annex no.1.

The provisions of this law do not apply:

a) persons exercising functions of public dignity;

b) the staff employed, based on personal trust, in the office of the exercising persons functions of public dignity;

c) the personnel from the public authorities carrying out auxiliary secretarial activities, protocol, administrative, information systems administration, including introduction and information processing that ensures the functioning of the public authority;

c.1) staff employed for a specified period on account of additional income and all other sources;

d) other categories of personnel who do not carry out activities that involve the exercise prerogatives of public power.

Thus, employees of individual labor disputes resulting from the public domain may be classified into three categories:

a) civil servants;

b) employees who do not have the quality of civil servants, but who perform work in the field public;

c) the chosen persons.

Therefore, of the above categories, only civil servants are part of the litigation individual work to be examined in the contentious proceedings administrative.

The employer, part of the individual labor dispute in administrative litigation, is any organizational structure or body, established by law or by a normative administrative act, acting in the regime of public power in order to achieve a public interest.

They are assimilated public authorities within the meaning of the Law on Administrative Litigation and persons under private law exercising public power or using the public domain, being empowered by law to provide a service of public interest.

The request in administrative litigation will be submitted in the courts in whose territorial radius the plaintiff is domiciled or the defendant has its registered office, except in cases where by law it is established another competence. Individual labor disputes involving civil servants and persons with disabilities special status do not have to be conditioned by carrying out the preliminary procedure, just like any individual labor dispute.

Exceptions will be the actions of officials regarding the repair of the material and moral damage caused to the employee.  Pursuant to art.332 of the Labor Code, the employee must submit a written request to the employer, to which he is obliged to respond in time for 10 days.

However, if the employee's lawsuit will include several requirements which will also include the repair of the damage, then the preliminary settlement procedure is excluded. Another peculiarity that distinguishes the way of solving the divergences between civil servants and their employers is the deadline for addressing in court.

For civil servants and persons with special status, the deadline for addressing in court is 30 days from the date of communication of the administrative act, if the law does not provide otherwise (art. 17 of the Law on Administrative Litigation). 

Requests submitted with the omission, for justified reasons, of the terms provided by law may be reinstated within the court.

23. According to art.256 paragraph (2) CPC, art.356 Labor Code, the court decision on the reinstatement in service of the illegally dismissed or transferred employee is to be executed immediately. If the administration of the unit or its collegiate body has not executed the decision on the reinstatement of the employee at work, the court, based on the finding report drawn up by the bailiff, responsibility or, as the case may be, to the members of the collegiate body, obliged to execute the decision, the sanction provided by the Contravention Code. In this case, the bailiff determines the debtor a new execution term (art. 153 of the Execution Code).

24. Reparation for the damage caused to the employee as a result of the refusal to employ, dismissal, illegitimate transfer are explained in the decision of the Plenum of the Supreme Court of Justice no. 11 of 03.10.2005 “Regarding the practice of the application by the courts of the legislation which regulates the obligation of one of the parties to the individual employment contract to repair the damage caused to the other party ”.

25. From the date of adoption of this decision, the Decision of the Plenum of the Supreme Court of Justice of the Republic of Moldova no. 12 of 03.10.2005 “Regarding the judicial practice of the examination disputes arising from the conclusion, amendment and termination of the individual employment contract ", with subsequent changes.

THE PRESIDENT OF THE COURT SUPREME JUSTICE                                        Mihai POALELUNGI

 

Chisinau, December 22, 2014.

 

No.9

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