PREDESCU v. ROMANIA
Inadmissible
András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano
1. The applicant, Mr Vasile Predescu, is a Romanian national who was born in 1975 and lives in Timişoara. 2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Romanian Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 6 January 2000 the applicant was employed as an electrical technician by the Timişoara office of a multinational company, F. 5. According to a report issued on 17 January 2009, the general assembly of the Solectron Free Trade Union (Sindicatul Liber Solectron – “the union”), formed by 206 of F.’s employees, organised elections for executive positions (funcțiile de conducere) at the union. According to the same report, the auditing committee was listed among the union’s executive functions and the applicant was elected as a member of that committee. 6. On 28 January 2009 F. gave the applicant notice that he would be dismissed. 7. On 16 February 2009 the union applied to the Timişoara District Court for authorisation for the changes made on 17 January 2009 in the composition of the union’s executive bodies (organe de conducere). F. was not a party to the proceedings. 8. On 18 March 2009 the Timişoara District Court allowed the union’s application and ordered the registration of the changes in the composition of the union’s executive bodies in the Special Register for Unions, held at the aforementioned court’s registry. 9. On 21 April 2009 the applicant was dismissed. The reason given in the dismissal decision, which was issued on the same date, was that the company had faced financial difficulties following a severe drop in client orders, which had forced it to reorganise and reduce its activities, to downsize and to remove 720 posts, including the applicant’s. The dismissal decision noted that the applicant was given the opportunity to apply for a position that had not been removed, but did not take up that opportunity. The dismissal decision also took account of the criteria established by the collective agreement concerning the order of priority in respect of dismissals and the fact that no other posts suitable for his professional qualifications or other posts in general had been available within the company. 10. On 19 May 2009 the applicant challenged the dismissal decision before the domestic courts and asked to be reinstated. He argued, inter alia, that on the dates that the dismissal notice and decision had been issued by the company he had already been an elected member of the union’s auditing committee and had therefore been occupying an elected position within the union. He stated that according to Article 60 of the Romanian Labour Code the company was not allowed to fire him while he held such a position. He further stated that he had been dismissed because on 15 January 2009 he had brought court proceedings for a salary increase and award of seniority bonuses and because as a union member he had caused problems for the company’s management in claiming his lawful rights. 11. F. defended itself by arguing that the applicant’s dismissal had been the result of a large downsizing process which had started in November 2008 and had been due to end in July 2009. Moreover, the dismissal had been lawful and had not breached the provisions of the collective agreement or the Romanian Labour Code. 12. On 25 November 2009 the Timiş County Court allowed the applicant’s claim, quashed the dismissal decision and ordered his reinstatement. It noted that the report of the meeting of 17 January 2009 had shown that the union had considered the auditing committee to be one of its executive bodies and that the applicant had been elected as a member of that committee. The court considered that even if it had accepted the company’s argument that the auditing committee had not been part of the union’s executive functions and that therefore the conditions set out by Article 223 of the Romanian Labour Code had not been met, the dismissal decision had still been unlawful because the provisions of Article 60 § 1(h) applied. The conclusion that at the time of his dismissal the applicant had been occupying an elected position in a union body (even if not an executive one, as Article 60 § 1(h) did not make the same distinction as Article 223) had become reasonable and even mandatory, given that he had been elected to the union’s auditing committee. Consequently, the dismissal decision had breached Article 60 § 1(h), given that that provision represented a legal safeguard against potential pressure on those occupying elected positions within the union from exercising their mandate. However, relying on the evidence before it, the court accepted F.’s argument that the selection of the staff affected by the downsizing process had been made by consulting with the trade union and by complying with the established criteria, in particular the level of professional performance and the order of priority set out in the collective agreement and the Labour Code. 13. F. appealed on points of law (recurs) against the judgment. It argued that the applicant’s dismissal had been lawful and justified by the company’s difficult financial situation. 14. The applicant reiterated the arguments raised before the firstinstance court. 15. By a final judgment of 21 April 2010, the Timişoara Court of Appeal allowed F.’s appeal on points of law, quashed the judgment of the firstinstance court and dismissed the applicant’s challenge to the decision to dismiss him. It held that Articles 9, 10 and 11 of Law no. 54/2003 concerned the protection enjoyed by representatives elected to a trade union’s executive bodies. The complimentary (complementare) provisions of Article 223 of the Romanian Labour Code concerned the same issues, while Article 60 § 1(h) prohibited dismissals during the exercise of the powers of an elected position. The collective agreement had also provided protection for representatives elected to the union’s executive bodies. Consequently, the court considered that it had been necessary to determine which of the union’s bodies were executive and whether the post of auditor had been an elected position. 16. In that connection, the court considered that Articles 8 and subsequent of Law no. 54/2003 provided that executive bodies were formed by elected union members. Moreover, the notion of an auditor and the functions of the auditing committee were regulated by Article 26 of Law no. 54/2003, which provided that the aforementioned committee operated according to the union’s constitution. Furthermore, according to the union’s constitution its executive bodies were the general assembly, the council and the permanent bureau. The union’s constitution also set out that the composition of the auditing committee was decided by the council and that its area of competence was approved by the general assembly. 17. The court held that according to the aforementioned legal provisions, taken together with the provisions of the union’s constitution, the auditing committee was neither an executive nor an elected body. While it was true that the applicant had been elected as an auditor, such a form of appointment had exceeded the provisions of the union’s constitution, which provided for the appointment of auditors by the council. In addition, the post of auditor could not have been an executive position because those positions had been clearly established by the union’s constitution. 18. The court also held that the provisions of Article 60 § 1(h) of the Romanian Labour Code had to be read in light of the provisions of Article 223 of the same code and Articles 8 to 11 of Law no. 54/2003. According to the aforementioned provisions, only workers occupying executive positions within the union enjoyed the protection claimed by the applicant. Consequently, the first-instance court had wrongfully held that the applicant’s dismissal had been unlawful. 19. Lastly, the court considered that it was unnecessary to examine the remaining aspects of the lawfulness of the decision in the context of F.’s appeal on points of law. 20. The relevant provisions of the Romanian Labour Code in force at the material time read as follows: “(1) Employees may not be dismissed: ... (h) while they hold an elected position within a union body, except in circumstances where the dismissal is ordered for serious or repeated disciplinary misconduct by those employees; ... (2) The provisions of the first paragraph do not apply if the dismissal was ordered for reasons flowing from the employer’s judicial reorganisation or bankruptcy, according to law.” “(1) Representatives elected to a trade union’s executive bodies shall benefit from the protection of the law against any form of conditions, constraints or limitations in exercising their function. (2) During their mandate and for two years after their mandate has ended, representatives elected to a trade union’s executive bodies cannot be dismissed for reasons which do not concern the employee’s person, for professional inadequacy, or for reasons connected to the exercise of a mandate received from other employees in the company. (3) Other measures for the protection of representatives elected to a union’s executive body are provided in special laws and the applicable collective agreement.” 21. The relevant provisions of Law no. 54/2003 on trade unions in force at the material time read as follows: “Trade unions’ constitutions shall contain provisions with regard to: ... (e) their executive bodies, name, method of election and removal, length of mandate and duties ...” “Members of a trade union with full legal capacity and who have not been prohibited as a complementary punishment from holding a position or practising a profession of the nature used by the sentenced person to commit the offence may be elected to executive bodies.” “The members of a trade union’s elected executive bodies shall benefit from the protection of the law against any conditions, constraints or limitations on exercising their function.” “(1) During their mandate, and for two years after their mandate has ended, representatives elected to a trade union’s executive bodies cannot have their work contracts terminated or changed for reasons not imputable to them, which the law leaves at the discretion of the employer, except with the written agreement of the elected executive collective body of the trade union. (2) A change or termination of the individual work contract of representatives elected to a trade union’s executive bodies and of their members at the employer’s initiative for reasons which concern the trade union’s activities are prohibited. (3) The provisions of the first paragraph do not apply to those who have been removed from executive positions held within the union for breaching the provisions of the [union’s] constitution or the law...“ “(1) Reviews of a trade union’s own financial activities and of their social and financial units is carried out by the Auditing Committee, which operates according to the constitution ...” 22. The relevant provisions of the Solectron Free Trade Union’s constitution in force at the material time read as follows: “The trade union’s organisational structure includes: the General Assembly, the Trade Union’s Council, the Permanent Bureau and the Auditing Committee.” “The General Assembly is the trade union’s highest executive body...” “The activities of the General Assembly are organised and run by the Permanent Bureau.” “The General Assembly has the following duties: ... approves the competences and the report of the Auditing Committee ...” “The Trade Union’s Council is the trade union’s executive body which has decision-making and deliberative character and decides on the measures needed to enforce the resolutions and decisions adopted by the General Assembly ...” “The Trade Union’s Council has the following duties: ... decides on the composition of the Auditing Committee and any changes to it ...” “(1) The Permanent Bureau is the permanent executive body which carries out the operational management of the trade union and enforces the decisions of the General Assembly and of the Trade Union’s Council ...” “The Auditing Committee is the financial control body of the trade union’s economic and financial activities ...”