Hallucinatory case in court. Clerk fired after found to be severely disabled. Dismissal, declared unfair

Hallucinatory case in court. Clerk fired after found to be severely disabled. Dismissal, declared unfair
Hallucinatory case in court. Clerk fired after found to be severely disabled. Dismissal, declared unfair

A court clerk under the Bacău Court of Appeal was fired after, four years after his employment, it was discovered that the clerk had a certificate for a severe degree of disability, accompanied by an attendant.

The man contested the decision of the Bacău Court of Appeal in court, and the Mureș Court and the Mureș Court of Appeal annulled the dismissal decision.

November 2016. The Bacău Court of Appeal organizes a competition for the position of clerk at a subordinate court. The contest is won by a candidate who submits to the contest file, among other things, a certificate from which it appears that he is medically fit and “has no evidence of infectious-contagious chronic and mental diseases.”

April 2017: The clerk is employed and from the first month of employment he goes on sick leave for eight days.

In 2018, the clerk receives 41 days of sick leave, in 2019 23 days of sick leave and 120 days of unpaid leave, and in 2020 the man had sick leave throughout the year.

February 2021: The Bacău Court of Appeal, on the basis of a document issued by the Directorate of Social Assistance and Child Protection – Complex and Vocational Assessment Service for Adults with Disabilities, finds that the clerk has been classified since 2006 as severely disabled, with an accompanying person, suffering , from birth, of a congenital malformation of the heart.

Congratulations in the morning, kicked out in the afternoon

In the wrongful dismissal process that he opened after he was fired, the clerk shows that on the first day he returned to work after more than a year of sick leave, he was called to the president of the court, where he received the qualification “very good” and he was given a new job description to sign, and at the end of the program he was informed that he was fired.

The Bacău Court of Appeal, which ordered the dismissal of the registrar, justified its decision by showing that the registrar “did not inform the competition committee of the existence of the Certificate of classification in the degree of severe handicap with a personal assistant, submitting to the competition file the certificate from which it appears that there was no record of chronic and mental, infectious-contagious diseases, nor was it known to the employer at the time of issuing the hiring decision”.

Verdict: wrongful dismissal

Following the dismissal, the clerk sued the Bacău Court of Appeal, demanding the annulment of the dismissal decision and moral damages of 100,000 euros. The first phase of the trial was heard at the Mureș Court. The clerk won the case, the court showing that “no document submitted to the case file shows that any qualified person established that the plaintiff was not employed or lost his ability to work during the course of the activity”.

“From the documents in the file, it does not appear that information was communicated to the applicant regarding a possible procedure that he had to follow in order to obtain the medical certificate in question. As a result, it must be appreciated that the certificate attesting that the applicant was not on record with chronic, mental, infectious-contagious diseases (issued for the contest), met the condition imposed by art. 8 para. 2 lit. g of the Regulation regarding the way of organizing and conducting the competition for the recruitment of archival clerks, registrar clerks and related personnel, especially since the defendant also employed the plaintiff”, the Mureș Tribunal judgment also states.

The court also emphasized that the attitude of the Bacău Court of Appeal “is oscillating”. “It is not clear from her defenses whether she claims that the plaintiff was not fit to practice the profession or if this aptitude was lost along the way, but in any of the two variants it must be appreciated that the defendant’s claims are not based on any medical certificate issued under the rigors of the HG no. 355/2007”, the judges pointed out.

The Mureș Court also showed that if the clerk “was hired without the condition of having presented a medical certificate verifying that he was fit to perform that work, the legal path that the defendant had to follow was not that of taking the measure of terminating the individual employment contract of the applicant (because the applicant would no longer correspond to the position), but it was that of establishing the nullity of the individual employment contract, based on art. 57 of the Labor Code in conjunction with art. 27 para. 2 of the same code (because the legal requirements for concluding the individual employment contract were not met)”.

“Regardless of whether or not the plaintiff had the obligation to inform her (or the competition committee) of the fact that he is classified as disabled, the defendant could not refuse the plaintiff’s employment strictly for this reason.

The fact that the claimant’s right to benefit from a personal assistant was established in favor of the claimant must be seen not as an obstacle in the claimant’s carrying out the activity, but as a measure of protection granted by Law no. 448/2006 in support of it, which the plaintiff can use to the extent he needs”, it is also stated in the sentence of the Mureș Court, which remained final following the appeal from the Târgu-Mureș Court of Appeal.

Thus, the judges decided to cancel the dismissal decision and rehire the clerk, with the payment of wages for the period in which he was fired. The request for moral damages was rejected, as the judges considered that the clerk did not prove any moral trauma suffered as a result of the situation in which he was put.

The article is in Romanian

Tags: Hallucinatory case court Clerk fired severely disabled Dismissal declared unfair

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