in public holidays as stipulated in article 139 paragraph (1) of the Labor Code, republished, as amended and supplemented, is an offense provided according to art. 260 paragraph (1) letter g) of the Code, when the employer has fulfilled the obligations under art. 142 of this act.
Pursuant to art. 141 of Law no. 53/2003 – Labor Code, republished, as amended and supplemented, “The provisions of art. 139 do not apply in workplaces were work cannot be interrupted due to the nature of the production process or specific activity. “
According to Art. 139 of the same code, “the official holidays in which no work is performed are: January 1 and 2, the first and second day of Easter; May 1; first and second day of Pentecost, Assumption, November 30 – Apostle Andrew the First-Called, Protector of Romania, December 1, first and second day of Christmas, two days for each of the three annual religious holidays, declared as such by legal religious cults, other than Christian, for persons belonging to them “(para. 1), and “Giving days off is made by the employer” (para. 2). Also, according to art. 260 para. (1) letter g) of the Labor Code, “Is an offense and is sanctioned as follows the following facts: (…) any breach by the employer of art. 139 and 142 (…)”. The provisions of art. 139 para. (1) of the Labor Code set forth, therefore, the rule, according to which, during holidays, employees do not provide any activities.
From this rule, the legislature has established, however, some exceptions that are stipulated in art. 140 and 141 of the Labor Code. Thus, according to art. 140, “By Government’s decision there will be established work programs adequate for the health facilities and the food facilities, in order to ensure healthcare and, respectively, the supply of the population with food strictly necessary, the application of which is obligatory” and according to art. 141 “provisions of art. 139 do not apply in the workplaces in which work cannot be interrupted due to the nature of the production process or specific activity.”
How ‘retail activities of non-food products “covered by the notification in Case are not found among those exempted in accordance with art. 140 of the Labor Code, it is essential the interpretation of the terms “nature of the production process” and “specific activity” used by the legislator in art. 141 of the Labor Code, to determine whether those activities fall into this second category of activities exempted from the application of Art. 139 of the Labor Code.
Reported to the acceptance of the doctrine of the two phrases, it follows that their interpretation must be supple, adapt to society at a time, in direct connection with nature and diversity of social and economic activities and stage technology development, being commonly accepted that limiting wording of the legal provisions could lead to excessive rigidity in its application.
From this perspective, analyzing the content of the contravention provided and sanctioned by art. 260 paragraph (1) g) of the Labor Code, under the aspect of its material side, it is observed that it is represented by the emissive conduct of the employer to not give the employee days off on public holidays, when the nature of the production process or specific of the activity does not justify the work performed in these days, on the one hand, respectively not to grant the compensation provided for by art. 142 of the same code, in case the above targets have imposed or, where appropriate, justified the performance of work these days, on the other hand.
So, to the extent that the specific of the activity determined the work to be carried out on legal holidays, it cannot be allege that the employer is committing the offense as violation of art. 139 of the Labor Code, but as a violation of Art. 142 of the same law, if it does not prove that has given to the employee the rights under those provisions of the law.
For the reasons shown under Art. 517 paragraph (1) with reference to art. 514 of the Code of Civil Procedure, the High Court of Cassation and Justice decided to allow the appeal in the interest of law filed by the general prosecutor of the High Court of Cassation and Justice and therefore determined that “the act of the employer to conduct retail of non-food products in places of business in shopping centers, in public holidays stipulated by art. 139 paragraph (1) of Law no. 53/2003, republished, as amended and supplemented, is not an offense provided by art. 260 paragraph (1) g) of this law, when the employer has fulfilled the obligations under Art. 142 of the same law. “