As already mentioned by our colleague Dan Ciupala in the previous legal article drafted on this topic that can be read here, the Romanian High Court of Cassation and Justice (ÎCCJ) issued a landmark ruling on 16 September 2024, allowing phone recordings between employees or between employees and their employer to be used as evidence in labour disputes against the employer, even if the other party was unaware of, or did not consent to, the recording.
On 18 October 2024, the Romanian High Court of Cassation and Justice (ÎCCJ) published Decision no. 39/2024 containing the legal reasoning which led to the above-mentioned ruling. Please see below certain highlights from this decision which seem to bring more understanding of the court’s ruling.
Labour relationships should be based on the principle of consensualism and good faith, and thus, as a general rule, phone recordings represent an infringement of the rules of social conduct.
Nevertheless, the admissibility of these recordings as evidence may be utilized provided that a just equilibrium between the right to evidence, on one hand, and the right to privacy, on the other hand, is ensured, and when they are indispensable for proving critical facts and no alternative evidence is available.
The need for a fair balance between the right to evidence and the right to privacy granted to any natural person, therefore, including a representative of the employer, must be observed. However, the court underlined within the reasoning of the decision that the right to privacy is not absolute.
Thus, the violation of the right to privacy is lawful, if such interference is permitted by the law, fulfils a legitimate purpose, and is necessary and proportionate to the aim pursued.
Moreover, in order to be accepted, the use of such recordings must be indispensable to the employee’s ability to present evidence given the particular circumstances of the case, which is to be assessed on a case-by-case basis by each particular labour court. Moreover, the use of phone recordings must be strictly proportional to the need to protect the employee’s legal rights.
As of the publication of the preliminary ruling, any Romanian labour court hearing a labour dispute against the employer, must consider that, in the case of exceptional de facto situations, considering the imperial social need and indispensability of the right to proof, it is possible to limit the exercise of the right to privacy of the employer’s representative, in order to not deprive the claimant of his/her right to evidence, whilst ensuring a fair and just trial for both parties.
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