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of February 4, 2020 No. 3

About exceptional case of illegality of Art. 87 of h (2) and h (3) Labor code (obligation of consent of trade-union body for dismissal [2]) (address No. 149g/2019 of year)

Name of the Republic of Moldova

Constitutional court in structure:

Vladimir Tsurkan, chairman,

Eduard Ababey,

Domnika Manole,

Nicolae Roshka,

Liouba Shova,

Sergey Tsurkan, judges,

with the assistance of the assistant judge, Dina Mustyatsa,

in view of the address,

registered on August 8, 2019,

having considered the specified address in open plenary meeting,

considering acts and case papers,

having carried out discussion in the consultative room,

issues the following decree.

Points of order

1. The address about exceptional case of illegality of Art. 87 of h formed the basis for consideration of the case (2) and h (3) the Labor code, provided at the request of Vitaly Unguryanu, the managing director of JSC Servicii comunale Floresti, within case No. 2ra-1360/19, considered by the Highest trial chamber.

2. The address about exceptional case of illegality was brought into the Constitutional court on August 8, 2019 by judges of expanded Board on civil, commercial and administrative cases of the Highest trial chamber according to Art. 135 of h (1) the item and) and the item g) Constitutions.

3. The author of the address believes that provisions of Art. 87 of h (2) and h (3) the Labor code Art. 4, contradict the Art. 7, of the Art. 8, of the Art. 9, of the Art. 16, of the Art. 20, of Art. 54 and Art. 126 of the Constitution.

4. Determination of the Constitutional court of November 18, 2019, without decision in essence, the address was acknowledged acceptable.

5. During consideration of the address the Constitutional court requested opinion of Parliament, the President of the Republic of Moldova, the Government, National confederation of labor unions of Moldova and faculty of the right of the State university of Moldova.

6. In open plenary meeting of the Constitutional court the address was supported by Eudzheniu Barbelat, the managing director of JSC Servicii comunale Floresti. From Parliament the main consultant of service of representation took part in the Constitutional court and law enforcement agencies of general legal management of the Secretariat of Parliament Rada Rada. From the Government there was Eduard Serbenko, the state secretary of the Ministry of Justice, and Nesle Rusu, the state secretary of the Ministry of Health, work and social protection. From National confederation of labor unions of Moldova there was Eudzhen Kovrig, the head of legal department.

Circumstances of the main dispute

7. The managing director of JSC Servicii comunale Floresti of the order No. 23 of May 17, 2018 dismissed Alexey Volyansky, the chief of control and accounting department, in connection with reducing number of personnel.

8. Alexey Volyansky submitted on June 28, 2018 claim against this company with the requirement to cancel the dismissal order and to reinstate as it. The claimant referred to provisions of Art. 87 of h (2) and h (3) the Labor code as its dismissal was made without the consent of trade-union body. Alexey Volyansky held position of the chief of control and accounting department and at the same time was member and the chairman of trade-union committee of primary trade-union organization JSC Servicii comunale Floresti.

9. The court of Forty partially granted on October 3, 2018 the action for declaration of Alexey Volyansky, having made the decision on immediate recovery it in position and payment of the average monthly salary for forced absence from work.

10. The appeal chamber of Belts partially satisfied with determination of February 5, 2019 the petition for appeal of JSC Servicii comunale Floresti, having cancelled the decision of the first instance regarding collection of the salary for the period of absence from work and having upheld the decision on recovery of the claimant in position.

11. JSC Servicii comunale Floresti made on April 17, 2019 the writ of appeal about acts of the first and appeal instances, requiring their cancellation and pronouncement of the new judgment of dismissal. Subsequently the this company provided to the Highest trial chamber request about exceptional case of illegality of Art. 87 of the h. (2) and h (3) Labor code.

12. The Highest trial chamber satisfied with determination of July 31, 2019 request and sent the appeal about exceptional case of illegality to the Constitutional court for permission.

Applicable legislation

13. Applicable provisions of the Constitution:

Article 9 Basic principles of property

"(1) the Property can be public and private. It consists of material and intellectual values.

(2) the Property cannot be used to the detriment of the rights, freedoms and advantage of the person.

(3) the Market, free economic initiative, fair competition are fundamental factors of economy".

Article 16 Equality

"(1) the Respect and protection of the personality constitute paramount obligation of the state.

(2) All citizens of the Republic of Moldova are equal before the law and the authorities irrespective of race, nationality, ethnic origin, language, religion, floor, views, political affiliation, property status or social origin".

The article 42 Right to create labor unions and to enter them

"(1) Any worker has the right to create labor unions and to enter them for protection of the interests.


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