I. THE IMPORTANCE OF THE DISCIPLINARY PROCEDURE
The need for a preliminary investigation procedure in disciplinary matters becomes self-evident if we analyze the existing subordination relationship between the employee and the employer. Disciplinary sanctioning is not a meaningless action; it holds and ensures a fair balance between the employer’s right to hold the disciplinary prerogative, and protecting the business they run, and the employee’s right to a stable workplace, as well as protection from arbitrary decissions or acts against the employee (for example the right to a dismissal notice).
If we previously discussed individual dismissal, in this article we will discuss in detail the disciplinary sanctions procedure (or simply said, “disciplinary procedure“) and the implications it entails.
The employer needs to follow the stages of the disciplinary investigation, its formal conditions, but also the deadlines imposed by the law, to avoid a litigation situation in which, due to non-compliance with disciplinary procedure, the dismissal decision will be canceled by the courts. For the employer, this could mean an unnecessary waste of resources, time, and money, and for the employee the reassignment to the position, the granting of salary rights retroactively and even obtaining possible damages according to art. 80 of the Romanian Labour Code.
II. WHEN IS THE DISCIPLINARY PROCEDURE NEEDED?
The preliminary disciplinary procedure is mandatory if the employee committed serious or repeated disciplinary misconduct as established by the individual labour agreement, the applicable collective labor agreement, or the internal regulation.
IMPORTANT! The disciplinary investigation procedure is mandatory, according to the Romanian Labour Code, for the misconduct which can be sanctioned according to art. 248 paragraph 1 (b-e) of the Romanian Labor Code, i.e.:
- demotion from the current job position and the granting the salary corresponding to the position in which the demotion was ordered, for a duration that cannot exceed 60 days;
- reduction of the basic salary for a duration of 1-3 months by 5-10%;
- reduction of the basic salary and/or, as the case may be, the management allowance for a period of 1-3 months by 5-10%;
- disciplinary termination of the individual employment contract.
If said procedure is not respected by the employer, the dismissal decision shall be declared null and void by the Romanian courts of law. The only sanction for which the employer does not have to start the preliminary investigation remains the written warning. However, the warning must be communicated to the employee in written form.
III. STAGES OF DISCIPLINARY RESEARCH
1. Who shall carry out the disciplinary investigation
To carry out the disciplinary investigation, the employer must (1) appoint a person or (2) establish a commission or (3) call on the services of an external consultant specialized in labor legislation, whom they shall empower in this regard.
The appointment and authorization of a person or a committee is the first stage of the procedure that the employer has to follow. The commission or the (internal) appointed person cannot be involved in any conflict of interest with the employer or the employee in question. Furthermore, they cannot be subjected to the same disciplinary procedure.
For example, it is not recommended that the appointed person be the direct hierarchical superior of the employee or the person who reported the disciplinary misconduct to the employer.
If, however, the employer opts for an external consultant, he will have to ensure that they are an expert in Romanian labour legislation, following the Romanian Classification of Occupations (RCO code 242220).
2. The written summons/notification of the employee according to art. 251 paragraph 2 of the Romanian Labour Code
This stage is extremely important; in case of a court dispute, the employer must be able to provide proof that the summons was communicated to the employee. The summons is important because it allows the employee to defend themselve against the employer’s accusations.
The summons can be sent by post/courier to the employee’s home address, to the email address regularly used between the employer and the employee, or by hand delivery.
The content of the summons must include its object with all relevant information for the employee’s defense (the fact for which they are being investigated, the legal/contractual provisions in question etc.), the date, time and place of the meeting.
Failure of the employee to appear at the summons, without an objective reason, gives the employer the right to order the sanction in question, without continuing the disciplinary investigation procedure.
3. Rights and obligations for the employee
According to paragraphs 3 and 4 of article 251 of the Romanian Labor Code, the employee should appear at the summons (the risk of absence from the meeting was previously explained). However, to be within the letter and spirit of the law, the chairman of the committee or the authorized person, as the case may be, must ensure a reasonable period between the communication of the summons and the fixed date, a period that allows the employee access to the defense.
Although no minimum or maximum term is provided, the employee in question must benefit from sufficient time to call on an external consultant or the trade union of which they are a member of, to prepare their defense, support, and motivations in their favor, but also to get in possession of the evidence.
4. Report of the disciplinary commission/authorized person
Although this report is not expressly provided for in the Romanian Labour Code (it’s necessity is deduced from the outline of the law, as well court rulings), it brings to the attention of the employer the result of the disciplinary investigation procedure, providing grounds for choosing the proper sanction of the employee, proportional to their misconduct.
Since the employer cannot directly carry out the disciplinary investigation, the committee or authorized person will have to share to the employer (via the report):
- the description of the act that constitutes disciplinary misconduct;
- the circumstances in which the act was committed;
- the provisions of the staff statute, the internal regulation, the individual labour contract, or the applicable collective labor contract which were breached by the employee;
- the consequences of disciplinary misconduct (i.e. its effect or impact on the employer’s business);
- the reasons for which the defenses formulated by the employee during the preliminary disciplinary investigation were removed or the reasons for which the investigation was not carried out (the employee’s unjustified absence from the summons);
- the culpability of the employee;
- the employee’s general behavior at work;
- any previous disciplinary sanctions previously applied to the employee;
- sanction proposal.
5. Sanctioning decision
The Romanian Labor Code provides that within 30 calendar days from the date on which the employer became aware of the disciplinary misconduct (but no later than 6 months since the misconduct occured), a written decision ordering application of the sanction shall be drafted by the employer.
The 30 days start to run when the employer becomes aware that the act of the employee meets all the conditions of a disciplinary misconduct, has learned about the impact this misconduct had on their business and applies a sanction (we are talking about the moment when the disciplinary investigation was completed). In judging an Appeal in the Interest of the Law (RIL), decision no. 16/2012, the High Court of Cassation and Justice ruled that:
In the interpretation and application of art. 252 paragraph (1) of the Romanian Labor Code, republished, the moment from which the term of 30 calendar days for the application of the disciplinary sanction begins to run is the date of registration of the final report of the preliminary disciplinary investigation at the unit’s registry.
The sanctioning decision is communicated to the concerned employee within 5 calendar days after it was drafted and signed, and they can appeal the decision to the competent courts, within 30 calendar days from the date of the communication.
The decission is delivered personally to the employee, with the signature of receipt, or, in case of refusal of receipt, by registered letter, at the domicile or residence communicated by him after the individual employment contract.
As I said in the introductory part of this article, the formal conditions of the decision are of crucial importance, as they could represent grounds for annulment of the dismissal decision (with all the repercussions of this fact: re-employment, retroactive granting of salary rights, damages).
The decision must include:
- description of the act that constitutes disciplinary misconduct;
- specifying the provisions of the staff statute, the internal regulation, the individual labor contract, or the applicable collective labor contract that were violated by the employee;
- the reasons for which the defenses formulated by the employee during the preliminary disciplinary investigation were removed or the reasons for which no disciplinary procedure was conducted;
- the legal basis on which the disciplinary sanction is applied;
- the term in which the sanction can be contested;
- the competent court to which the sanction can be appealed.
NB: According to art. 79 of the Romanian Labor Code, in the event of a labour conflct, the employer cannot invoke before the court other factual or legal grounds than those specified in the dismissal decision.i
IV. CONCLUSIONS AND RECOMMENDATIONS
I have tried in this article to simplify the procedure provided by the Romanian Labour Code, but, as you can see, it remains a rather complicated one, and its importance is crucial.
Employers are mainly responsible for applying it in a legal framework and respecting all employee rights. It thus becomes all the more important that they turn to a lawyer specializing in labour law who will guide them throughout this process.
Investing in specialist advice today is to ensure that future expenses and problems are avoided.
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