Labour discipline is necessary for ensuring the performance of each employer’s activity. Requirements to comply to a certain legal order that coordinates the employee conduct is necessary for any human activity carried out collectively, including at the workplace. In the current social context, employee dismissal represents the most serious sanction in labour law, with overwhelming importance for both parties involved – employee and employer. However, we will see that this is not only a sanction, but also a form of termination of the employment contract at the initiative of the employer (the reverse being resignation).
The Romanian Labour Code provides in Chapter V, Section II, art. 58, the definition and scope of this legal institution – employee dismissal. Thus, it is brought to the attention of the fact that the term “dismissal” represents a form of termination of the individual employment contract at the initiative of the employer and that it can be ordered:
- for reasons related to the employee or
- for reasons not related to the employee.
In today’s article, I am going to focus our attention only on the cases where the employer can dismiss the employee for reasons related to the them, then I will continue with the disciplinary procedure (mandatory in the case of dismissal for committing one or more disciplinary misconduct), respectively dismissal for reasons not related to the employee (objective reasons), in the future articles.
II. DISMISSAL FOR SUBJECTIVE REASONS (PERSONAL TO THE EMPLOYEE)
The cases of dismissal for subjective reasons are multiple and are provided for in the Romanian Labour Code in art. 61. These are:
A. The case in which the employee is under preventive arrest or house arrest for a period longer than 30 days, under the conditions of the Code of Criminal Procedure
The employer’s right to terminate the employment contract, in this situation, is based on an objective circumstance (the state of arrest in which the employee is) and is intended to reduce the employer’s patrimonial risks.
It is important, however, that the arrest exceeds a period of 30 days and that this state leads to the impossibility of the employee to carry out their activity.
If there is an employee under house arrest and who works remotely, it is debatable whether or not the employee is unable to perform his duties and if there are grounds to dismiss them.
B. The case in which, by decision of the competent medical expertise bodies, the physical and/or mental unfitness of the employee is established, which does not allow him to fulfil the duties corresponding to the job he holds
It is possible that during the course of the activity, an employee no longer corresponds from a medical point of view. This finding and decision is made by a labour medical specialist. They are the only authority having the right and the obligation to determine if the employee is medically able for a particular position. This was established by the High Court of Cassation and Justice in Decision no. 7/2016 regarding the interpretation of the provisions of art. 61 lit. c) from the Labour Code.
In this situation, the employee can receive a financial compensation, under the conditions established in the applicable collective labour contract or in the individual labour agreement, as the case may be.
C. The case in which the employee does not correspond professionally to the position/job title (professional misconduct)
The employer has the prerogative to establish the corresponding duties of each employee through the job description. He exercises control over the manner of meeting and setting individual performance objectives and the criteria for evaluating their achievements.
The Labour Code does not provide a definition of professional misconduct and has left this loophole open to the interpretation of judges. By decision 605/2016, the Bucharest Court of Appeal wrote that
professional misconduct is a circumstance of an objective or subjective nature that leads or is capable of leading to lower professional performances than those to which, reasonably, the employer is entitled to expect them from the employee and implies ignorance of the rules specific to a position, trades or professions.
Therefore, the dismissal for professional misconduct should not be ordered randomly against an employee, but only after their prior evaluation, according to the evaluation procedure established by the applicable collective labour agreement or, in its absence, by the internal regulation. We can admit the existence of such performance objectives also within the individual employment contract.
Also, it is considered an abuse on the part of the employer that the professional misconduct is sanctioned only after a single moment during the individual employment contract. It must be referenced to a long period of time or long enough to be considered sufficient to establish the professional misconduct.
Therefore, an examination (written, oral or practical, as the case may be) is necessary, objective, with solid foundations, and which is likely to confirm, in a broad sense, the professional regression of the employee or the lack of achievement of the performance objectives.
We see the importance of an internal regulation by which an evaluation procedure is established (criteria, committee, evaluation interval, etc.). Of course, it is equally important to have a human resources department (internal or outsourced) to monitor the application of this regulation. I would like to remind you that every employer can organize its human resources and payroll activity by contracting specialized external services, coordinated by an expert in labour law.
D. The case in which the employee committed a serious disciplinary misconduct or repeated disciplinary misconducts, as established in the individual employment contract, the applicable collective labour agreement or the internal regulation, as a disciplinary sanction
If the dismissal occurs for this reason, the employer has the obligation to go through and comply with a disciplinary procedure before applying this sanction. Moreover, the articles regulating the legal regime of disciplinary liability of employees, provide that the employer can apply only one of the following disciplinary sanctions:
- a written warning;
- demotion from the position and consequential reduction of 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 (individual dismissal).
Sanctions are applied according to quantifiable criteria and in no case arbitrarily. These criteria are:
- the circumstances in which the disciplinary misconduct was committed;
- the guilt of the employee;
- the consequences of the disciplinary misconduct;
- the employee’s general behaviour at work;
- any disciplinary sanctions previously suffered by him.
NB: Except for the written warning, all other sanctions can only be applied following the disciplinary procedure.
Likewise, an employee’s misconduct attracts a single disciplinary sanction. Sanctions cannot be cumulated, and disciplinary fines are strictly prohibited. However, disciplinary liability may be combined with civil and/or criminal liability.
Through a recent Decision pronounced by the High Court of Cassation and Justice:
(…) the stipulation of the criminal clause in the individual employment contract or in an additional act thereof, which assesses the damage caused to the employer by the employee due to fault and in related to his work, is prohibited and is sanctioned with the nullity of the clause thus negotiated.
Therefore, it is forbidden for the employer to determine in advance (a priori) the damage or the patrimonial impact and its stipulation in the individual employment contract.
III. OTHER APPLICABLE PROVISIONS
In addition to those explained above, the Labour Code provides other regulations regarding dismissal. I shall refer more to sub-points A, B and C.
Thus, in the situation where dismissal is sought after due to physical and/or mental incapacity of the employee, or their inadequate professional training (subpoints B and C), the employer has the following rights and obligations:
- The employer has the obligation to offer the employee another vacant position in the unit. This position shall have to be compatible with the professional training or, as the case may be, with his work capacity, established by the labour medical specialist;
If there is no suitable vacancy, the employer will turn to the territorial employment agency, which will take care of redistributing the employee, according to their professional training and/or, as the case may be, the work capacity established by the labour medical specialist. Only after notifying the agency, the employer can draft and issue the dismissal decision.
- If the employee does not give their written consent for the proposed job vacancy, within 3 working days, the employer can draft and issue the dismissal decision of the employee.
- For both situations, the employer must give notice, which cannot be less than 20 working days.
NB: Employees under preventive arrest for a period longer than 30 days or employees dismissed for disciplinary misconduct shall not benefit the 20 days’ notice.
- The employer has the obligation to issue the dismissal decision in writing, within 30 calendar days from the date of ascertaining the cause of the dismissal.
The dismissal decision takes effect from the date of its communication to the employee, and, according to Decision no. 34/2016 of the High Court of Cassation and Justice, it can also be communicated by email, in electronically accessible PDF format. It is relevant that the decision respects the form conditions identified above.
The dismissal procedure is a complex one, with various nuances and major impact for all parties involved.
If you are an employee, it is important to have a suitable defense and to be advised at every step of this process, to avoid a possible unfair dismissal.
If you are in the position of an employer, it is necessary to know all aspects of the law and to reduce as much as possible the risks your business may suffer. I am here to assist you with useful advice for the drafting of internal regulation, operating regulations, specific clauses of the employment contract (for example, non-competition clause), as well as specialised assistance for the implementation of procedures and the enforcement of various clauses contractual.
Do not hesitate to seek specialized advice, to avoid unnecessary risks and situations.
LATER EDIT: If you found this article useful, I recomment you also read the next from the series on DISCIPLINARY SANCTIONS PROCEDURE.
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