Disciplinary dismissal procedure in Romania
In Romania, the individual employment contract may be terminated by disciplinary dismissal if the employee commits a serious or repeated disciplinary offense.
The legislator has regulated a special procedure for disciplinary dismissal, one of the sanctions expressly regulated in Article 248(2). (1) of the Labour Code.
Disciplinary dismissal cannot be ordered without a prior disciplinary investigation by the employer. Any disciplinary dismissal ordered without a prior disciplinary investigation is null and void.
The preliminary disciplinary investigation procedure starts with informing the employee about the investigation. In writing, the employee will be summoned to appear at the place, date, and time set by the employer, to discuss the conditions under which the acts allegedly constituting disciplinary misconduct were committed. The summons must state the meeting’s subject, date, time, and place.
The summons shall be signed and served by the person authorized by the employer or by the persons who are members of the disciplinary investigation committee and not by the employer’s legal representative.
The notice shall be delivered personally to the employee. If the employee refuses to sign for receipt, the notice shall be delivered to the employee’s home or residence by registered letter.
How does the employee prepare for the summons?
At the interview, the employee may submit written and/or oral defenses in his/her favor to the authorized person or the disciplinary investigation committee, as well as to propose any evidence he/she deems necessary, for example, supporting documents, to propose that witnesses are heard, or that technical expertise be carried out. In addition, the employee may attend the meeting accompanied by a representative of the agreement or a representative of the trade union to which he belongs.
What are the consequences of not showing up for the summons?
If the employee fails to attend the meeting without an objective reason, the employer may order disciplinary dismissal without prior disciplinary investigation.
If for reasons beyond his/her control, the employee is unable to attend at the date and time stated in the notice, and he/she must inform the employer within a reasonable time. Subsequently, the authorized person or the disciplinary investigation committee shall set a new deadline and summon the employee again.
What are serious disciplinary offenses? What is repeated disciplinary misconduct?
Disciplinary offenses are not listed in the labor law, but are expressly provided for in the employer’s internal rules, collective employment contract, or, where applicable, individual employment contract and any additional documents. The employer also has the prerogative to determine which disciplinary offenses are considered serious and what determines the repetition of disciplinary offenses (e.g., two or three repeated disciplinary offences).
Labor law only defines the notion of disciplinary misconduct, establishing, in Art. 247 para. (2) of the Labour Code that it is: “(…) an act related to work and consisting of an action or inaction committed with guilt by the employee, by which he/she has violated the legal rules, the internal regulations, the individual employment contract or the applicable collective labor contract, the orders and legal provisions of the hierarchical superiors”.
Labor law does not require that a lesser disciplinary sanction be applied first to be subject to disciplinary dismissal.
What can an employee do in the event of unfair disciplinary dismissal?
The sanction of disciplinary dismissal shall be ordered by the employer, and not by the authorized person or the disciplinary investigation committee, within 30 calendar days from the time of registration of the final disciplinary investigation report at the registration office of the establishment, but not later than six months after the offense for which the employee is sanctioned.
The dismissal decision shall be communicated to the employee within five calendar days from the date of its issuance, being handed personally to the employee. In case of refusal to sign for receipt, it shall be communicated to the employee’s home or residence by registered letter.
Suppose the disciplinary dismissal is unlawful or unjustified. In that case, the employee has the right to appeal to the competent court against the dismissal decision, requesting that the dismissal decision be annulled, that the employer is ordered to pay compensation equal to the indexed, increased, and updated salaries and other rights that the employee would have enjoyed, and that the employee is reinstated in the post held before the unlawful dismissal. In addition, the employee may also claim statutory interest on all the salary rights to which he would have been entitled in the period following dismissal.
For example, a reason for the unlawfulness of the dismissal decision may also be the failure to give reasons for the dismissal decision in the absence of a description of the act constituting disciplinary misconduct. The act constituting disciplinary misconduct must be correctly and fully described in the dismissal decision, including the date it was committed or its correlation with the infringed provisions.
Within what time limit must the employee apply to the court?
In Romania, the disciplinary dismissal decision must be challenged within 30 calendar days of the date of its communication.
As regards the time limit within which the disciplinary dismissal decision can be challenged, the provisions of the Labour Code and the Social Dialogue Law 62/2011 set different time limits. More specifically, according to the provisions of Article 252 para. (5) of the Labour Code, the disciplinary dismissal decision must be challenged within 30 calendar days from the date of its communication, while the provisions of Art. 211 letter a) of Law 62/2011 on social dialogue established 45 calendar days from the date on which the person concerned became aware of the unilateral measure ordered by the employer. The provisions of Article 211(a) of Law 62/2011 were repealed by Law No 269/2021, amending Law No 62/2011 on social dialogue, and Law No 53/2003 – Labour Code. Subsequently, with the entry into force of Law No 367/2022 on social dialogue, Law No 62/2011 was repealed, and the 45 calendar days deadline for challenging a unilateral measure ordered by the employer was not reinstated.
Similarly, Law 269/2021 also amended Article 268 para. (1) letter a) of the Labour Code, with the following content: “Claims for the settlement of a labor dispute may be made:
- within 45 calendar days from the date on which the person concerned became aware of the measure ordered concerning the conclusion, performance, amendment, suspension or termination of the individual employment contract, including commitments to pay sums of money;”
Thus, the deadline within which the employee could challenge a unilateral measure concerning the conclusion, execution, modification, suspension or termination of the individual employment contract was changed from 30 calendar days to 45 calendar days.
In any case, the legislator did not intend to amend the provisions of Art. 252 para. (5) of the Labour Code, whereby, in the case of disciplinary dismissal, the employee may appeal against the decision to impose a disciplinary penalty to the competent courts within 30 calendar days from the date of communication of the decision, the provisions of the Labour Code providing for a special time limit for appealing against the decision to impose a disciplinary penalty, which applies in priority.
In the case of disciplinary dismissal, does the employee still benefit from the notice period?
No, employees dismissed on disciplinary grounds are no longer entitled to the notice period.
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