The mandatory consent at dismissal of the trade union – unconstitutional

On 8 December 2017, the Constitutional Court delivered its judgment on the exception of unconstitutionality of certain provisions of Article 87 of the Labour Code (Complaint no. 88g / 2017).

Circumstances of the case

The case originated in the exception of the unconstitutionality of Article 87.1 of the Labour Code, in the wording preceding the Law no.188 of 21 September 2017, raised by the representative of the Ministry of Health, Labour and Social Protection, Mr. Andrei Sveţ, in the case-file no. 3-1812/15, pending before the Chişinău Court, based in headquarters.

In the wording preceding the Law no.188 of 21 September 2017, under Article 87.1 of the Labour Code "the dismissal of employees - trade union members - in cases, provided for by Article 87.1 items c), d), e), g) and h), is admitted only with the preliminary written consent of the trade union body (administrator) of the unit. In other cases, dismissal is admitted following the preliminary consultation of the trade union body (administrator) of the unit."

The author of the complaint claimed that, in essence, the challenged provision according to which the employee, a trade union member, cannot be dismissed without the consent of the trade union, infringes upon the right to property of the employer, contrary to Article 46 of the Constitution.

The Constitutional Court ruled on the complaint in the following composition:

Mr Tudor PANȚÎRU, President,

Mr Aurel BĂIEȘU,

Mr Igor DOLEA,

Mrs Victoria IFTODI,

Mr Veaceslav ZAPOROJAN, justices

Conclusions of the Court

Having examined the materials of the case file and having heard the arguments of the parties, the Court held that Article 42 of the Constitution guarantees the right of employees to establish and join trade unions. Pursuant to the quoted constitutional provisions, trade unions contribute to the protection of professional, economic and social interests of employees.

The Court noted that, under the current provisions of Article 87.1 of the Labour Code, "the dismissal of employees - trade union members - shall be admitted with the prior consultation of the trade union body of the unit. "

Along the same lines, the Court also mentioned that the International Labour Organization Convention no.158 of 22 June 1982 on the termination of employment at the initiative of the employer provides for only the duty of the employer to notify and, respectively, to consult  the representatives of the employees in the event of their dismissal.

At the same time, the Court remarked that in the wording preceding the amendments made by Law no. 188 of 21 September 2017, the provisions of Article 87.1 of the Labour Code, which are applicable in the present case, stated that the employee could only be dismissed in the case when the trade union body expresses its consent in this respect.

The Court underlined that the role of the trade union body upon the termination of the individual labour contract at the initiative of the employer is a guarantee for the employee, who is in a relationship of subordination to the employer and requires special protection in order to avoid abusive dismissal.

At the same time, the Court observed that, pursuant to the challenged provisions, the consent of the trade union body was a mandatory requirement for the dismissal of the employee. Correlatively, the simple ascertainment of lack of this consent could have served as basis for the automatic re-establishment of the employee in office by a court of law.

In this context, the Court found that the mandatory consent of the trade union body and the automatic re-establishment in office in the absence of such consent amounts to a veto right at the dismissal of employees.

Thus, the Court noted that the protection of employees cannot be ensured by a total neglect of the interests of the employer who, within the limits set by law, must have autonomy in the organization and functioning of his/her own institution. Therefore, the Court held that the veto right of trade union bodies is disproportionate to the legitimate aim of protecting the rights of employees in relation to the employer's rights in the process of organizing the operation of the unit.

In conclusion, the Court ascertained that the veto right of trade union bodies in the decisions to dismiss the employees infringes upon the provisions of Articles 9, 46 and 126 of the Constitution, which enshrine the free economic initiative, the free entrepreneurial activity and the right to property. In this respect, the lack of consent of the trade union body in the dismissal of employees cannot in itself constitute the basis for automatic re-establishment in office.

In the same context, the Court mentioned that it will issue an Address to the Parliament for the revision of the provisions enshrining a similar legislative solution regarding the veto right of trade union bodies in the dismissal procedure of employees.

At the same time, the Court held that in order to safeguard the rights and interests protected by law, in the event of an abusive dismissal, the employee is entitled to bring legal action. Thus, if the court of law finds that the dismissal is unlawful, it may order the re-establishment in office and compensation of damages caused for the entire period of forced absence from work.

Judgment of the Court

Stemming from the set forth arguments, the Constitutional Court admitted the exception of unconstitutionality and declared unconstitutional the first sentence "the dismissal of employees - trade union members - in cases, provided for by Article 87.1 items c), d), e), g) and h), is admitted only with the preliminary written consent of the trade union body (administrator) of the unit" of Article 87.1 of the Labour Code no.154-XV of 28 March 2003 in the wording preceding the Law no.188 of 21 September 2017.

The Judgment of the Constitutional Court is final, cannot be appealed, shall enter into force on the date of passing, and shall be published in the Official Journal of Moldova.

This is an English language courtesy translation of the original press-release in Romanian language.