Consequences of the application of the principle of subsidiary liability of employees as regards the limitation period of the employer's substantive right of action

DEZBATERI

Abstract

The combined application in the same dispute, in respect of the same employee, of both means of social protection of employees, i.e. both that arising from the provisions of Article 211(1) letter c) of Law no. 62/2011 and which obliges the employer to act within 3 years from the date of the damage, under the constraint of the expiry of the limitation period of the substantive right of action, and the principle of subsidiarity of the employee's liability which obliges the employer to abstain from dealing with the former employee, by requiring him to exercise due diligence in bringing proceedings against third parties who are the beneficiaries of services or goods allegedly acquired unlawfully, without, however, those prior steps constituting cases in which the limitation period is interrupted, gives rise to a legal inconsistency the purpose of which is the loss of the subjective right claimed by the employer. In other words, the decisions rendered following the administrative or judicial steps taken by the employer to recover the damage caused do not mark the beginning of the limitation period for the action to recover the damage, since the only moment when the limitation period begins to run, after the entry into force of Law No 62/2011 (13 May 2011), is when the damage actually occurs. Such a regulation obliges the employer to take action against the employee within the limitation period, under the pressure of the extinction of the right of action in the material sense under Article 2500(1) of the Civil Code. In such a situation, to oppose the employer's intervention in the subsidiary liability on grounds of equity is tantamount to asking him to abandon his subjective civil right in its substance.

Keywords: subsidiary liability, failure to perform/failure to perform duties, limitation period, date of damage, certainty of damage