Consecinţele rezultate din instituirea formei scrise ad validitatem a contractului individual de muncă
Consequences resulted from establishing the written form ad validitatem of the individual labor contract

Summary/Abstract: Recently, with the amendments brought to the Labor Code by the Law no. 40/2011, the written form of the individual labor contract became a condition of validity (ad validitatem). The actual and imperative dispositions of art. 16 of the Labor Code establishes the written form of the individual labor contract as a condition of validity in the Romanian labor right. This form is imposed for any type of individual labor contract in as far as the text pointed does not operate any distinction. The non-observance of written form when concluding the individual labor contract is sanctioned with absolute invalidity of the convention, sanction that can be covered by the parties by the subsequent fulfillment of this condition. The parties have the possibility to determine the invalidity occurred, but to also establish its effect according to the law. In case the parties do not agree upon the invalidity of the contract, this invalidity can be determined by the decision of the competent court. The fact of determining, respectively the declaration of invalidity produces effect to the future only. Whereas the non-observance of written form affects the entire contract means a total invalidity, which determines the termination by law of the contract according to art. 56 paragraph 1 letter e of the Labor Code if not validated by the parties. Art. 57 paragraph 5 of the Labor Code does not regulate in detail the effects of invalidity, it points only that “the person who worked pursuant to an invalid individual labor contract has the right for remuneration according to the method of fulfilling the labor tasks”, thus it does not operate retroactively. The regulation of the individual labor contract in this manner attenuates the impact of this imperative requirement.

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