Civil service pay dispute. Exercising the active role of the judge in the context of ensuring a balance with the other two principles of the civil trial, i.e. availability and adversarial. Limits

JURISPRUDENȚĂ COMENTATĂ ŞI ADNOTATĂ

Abstract

In exercising the active role, regulated by the legislator in para. (2) of art. 22 of the Civil Procedure Code, the judge has the obligation to verify the plaintiff's claims regarding the maximum salary level, in which sense he may request clarification from the employer regarding the maximum salary level granted in the defendant institution for the function/grade/tier and grade at which the plaintiff is employed, indicating the legal provisions on the basis of which the basic salary for that post was determined, indicating the basic salary plus seniority and other allowances provided for by law, which shall be expressly indicated, together with the method of calculating them and indicating the legal provisions on the basis of which they were determined; the total gross salary set at the maximum level for the post in question; the net salary set at the maximum level for the post in question, after deduction of all legal obligations (tax, social security contributions, health insurance contributions, etc.). The matters put forward by the plaintiff must be examined in all their details, thus giving certainty to the legal relationship between the parties and enabling the court to verify subsequently the legality and merits of the plaintiff's claims.

Having regard to the subject-matter of the application before the Court, the Court notes that the purpose of Article 287 of the Municipal Code is to reverse the burden of proof in labour disputes, which is no longer on the plaintiff, as it is in ordinary law, but on the employer, irrespective of his procedural status as plaintiff or defendant. The legislator has taken into account, by this provision of favour given to employees, the dominant position that the employer has in the employment relationship, which allows him to build up evidence for each of the aspects of the conduct of legal relations with his employees and which position may constitute an obstacle to obtaining relevant evidence by employees