BARTOS v. ROMANIA
Inadmissible
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
1. The applicant, Mr Adrian Ioan Bartoş, is a Romanian national who was born in 1950 and lives in Sibiu. He was represented before the Court by Mr Ionel Olteanu, a lawyer practising in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. In 1997 the Public Health Agency of Sibiu County (“the agency”), further to a competitive examination, appointed the applicant in the post of economic deputy director in the Sibiu County Hospital (“the hospital”), a public institution. The hospital was in charge with the enforcement of that decision. 4. In April 2001 the agency found management deficiencies by the applicant. Therefore on 9 May 2001 the agency decided to dismiss him from his position as deputy director. That decision was to be enforced by the hospital and provided for a thirty-day time-limit to be challenged before the courts. 5. Consequently, on 11 May 2001 the hospital offered the applicant two alternative posts, either as economist or as consultant in the accounting department, informing him that in case of refusal it would terminate his employment contract in accordance with Article 130 § 1 (e) of the Labour Code for professional incompatibility. The applicant declined the two offers. 6. On 14 May 2001 the hospital charged the applicant with pecuniary damage caused to the institution, on the basis of the above-mentioned findings. However, on 1 October 2001 the Sibiu jurisdictional branch of the Court of Accounts annulled that decision, considering that the pecuniary damage had not been caused by the applicant and therefore he was not liable under the Labour Code. That judgment became final. On 7 December 2001 the public prosecutor also found no grounds which would justify initiating a criminal action against the applicant. 7. On 16 May 2001, having regard to the decision of 9 May 2001 and to the fact that the applicant had refused the two alternative posts, the hospital dismissed him from his job. 8. On 28 May 2001 the applicant challenged the decision of 16 May 2001 before the courts, seeking reinstatement in his previous job and payment of salary arrears. In his subsequent submissions, he also challenged the decision of 9 May 2001. 9. On 1 March 2002, the post of economic director was discontinued in line with new legal provisions. 10. On 13 June 2002 the Sibiu County Court allowed that action in part and annulled the decision of 16 May 2001, considering that his dismissal under Article 130 § 1 (e) of the Labour Code for management deficiencies had been groundless. It held that the legal grounds for terminating his employment contract should be reconsidered in a fair manner, by taking into account the applicant's preference for ceasing or continuing in another post. However, the court dismissed his complaint against the decision of 9 May 2001 as being out of time. Consequently, even if it found that the grounds for his dismissal were unfounded, it dismissed his other claims, considering that it could not order reinstatement in his previous job and payment of salary since that decision taken by the agency to dismiss him from his post had not been examined on the merits and had not been annulled. The court concluded that the hospital was not at fault for the termination of his employment contract because the applicant had previously been dismissed from his job by the hierarchically superior body and had not opted for another position. Therefore, in spite of upholding the annulment of his dismissal, the court considered that the provisions of Article 136 of the Labour Code were not applicable in the case. That Article provided that in case of annulment of a dismissal decision, the institution had an obligation to reinstate that person in his previous job and to pay him damages. 11. The applicant appealed, considering his reinstatement as the legal consequence of annulling the decision by which he had been dismissed. He also submitted that he had working relations with the hospital and that the decision taken by the agency was not relevant in his case. The hospital argued that the decision to dismiss the applicant had been taken by the hierarchically superior body, which had also employed him, and that the hospital had only enforced that decision in the absence of a positive answer by the applicant to its two alternative job proposals. The hospital also submitted that the two contested decisions did not have the same purpose because the decision taken by the agency aimed only at dismissing the applicant from his post, thus giving the possibility to continue working relations in another post, according to his qualifications. 12. On 7 October 2002 the Alba Iulia Court of Appeal upheld that judgment by a final decision. It considered that the annulment of the decision of 16 May 2001 had no influence over the previous decision of 9 May 2001, which had not been challenged in due time. Therefore, since the latter decision had not been annulled, it was not possible to order the applicant's reinstatement in his previous job or payment of salary. The court also considered to be irrelevant the fact that the applicant had working relations with the hospital, since the Regulations for the organisation and functioning of the public health agencies had provided that those agencies were entitled to revoke directors' appointments in subordinate institutions (see “Relevant domestic law” below). 13. On 28 October 2002 the applicant requested the hospital to reinstate him in accordance with the judgments of 13 June and 7 October 2002, considering that his employment contract was still in effect. He also submitted that he had the qualifications required for the post of accounting director or director in charge with reform. On 30 October 2002, during a meeting with the hospital's management, the applicant was informed about the unavailability of any post of economist within the hospital. He was also informed that the post of accounting director was not vacant and that the appointment in the post of director in charge with reform was to be made by the Ministry of Health, and not by the hospital. 14. Therefore, on 29 October 2002 the hospital requested the Sibiu County Employment Agency (the “AJOFM”) to find a corresponding job for the applicant and also informed the applicant about this action. On 21 November 2002 the AJOFM informed the hospital of the existence of two available posts of economist in a certain company. 15. On 25 November 2002 the hospital invited again the applicant to its headquarters. The applicant went on 28 November 2002, but refused to read the information sent by the AJOFM, requesting to have it submitted to him by post. Eventually, the applicant refused those offers. 16. Therefore, on 17 January 2003 the hospital terminated his employment contract under Article 130 § 1 (a) of the Labour Code, which provided for dismissal of an employee by the institution when the post occupied by the former had been discontinued following reorganisation. In accordance with the judgments of 13 June and 7 October 2002 it annulled the mention in his employment record which provided that he had been dismissed because of management deficiencies. The decision further stated that the period between 15 May 2001 and 17 January 2003 was not considered as length of service. 17. The applicant challenged that decision, seeking its annulment, his reinstatement in an equivalent post and payment of salary starting with 7 October 2002, the date on which the judgment of 13 June 2002 became final (see paragraph 12 above). He submitted that the annulment of the decision of 16 May 2001 had restored the status quo ante and therefore his employment contract was still valid. The hospital submitted that the post occupied by the applicant had been discontinued in accordance with new legal provisions, that it had no vacancy suited to the applicant's qualifications and that it had requested assistance from the AJOFM. Since the applicant had declined those offers, the hospital reconsidered the grounds for his dismissal, as stated in the judgment of 13 June 2002. 18. On 16 June 2003 the Sibiu County Court dismissed his action. It considered his dismissal as the only alternative, taking into account that his post had been discontinued, that the hospital had offered him another post corresponding to his qualifications and also the fact that the applicant had claimed only a post of accounting director or director in charge with reform, which could only be filled by competitive examination. The court further noted that the judgment of 13 June 2002 had only annulled the decision of 16 May 2001 by which the applicant had been dismissed from his job, but not the decision taken by the agency on 9 May 2001 with a view to dismiss him from his post. As a result his employment contract continued to be in effect, but his reinstatement in his previous job was no longer possible. The court also held that the period between 15 May 2001 and 17 January 2003 had legally been considered as not amounting to length of service, since neither the applicant nor the employer had paid social security during that period, as provided for by the legal provisions. Finally, the court dismissed as groundless his claim for overdue salary starting with 7 October 2002 for the reason that he had not worked. That judgment became final. 19. The order no. 1562/1993 of the Ministry of Health on the organisation and functioning of the public health agencies provided that the hierarchically superior body was in charge with appointing or revoking the appointments of the directors from the subordinate institutions. Those attributes were preserved by the order no. 120/2001 of the Ministry of Health on the approval of the Regulations for the organisation and functioning of the public health agencies.