When can an employee refuse an employer’s order?
As an employee, do you have the right to refuse a provision or order from your employer? What are the consequences?
In other words, are there situations where you can refuse a provision given by your employer without being disciplined?
In order to answer these questions, it is first necessary to have an overview of the legal framework applicable to employment relationships and an overview of the rights and obligations of the parties to an individual employment contract.
In this context, we note that the legal relations between employer and employee are governed mainly by the provisions of the Labour Code, but in conjunction with the provisions of other internal or external regulations, as well as with the customs that intervene in the absence or in addition to the law. The purpose of these legal instruments is to ensure the security of employment relationships and the protection of both the employer and the employee.
The individual employment contract concluded between the employer and employee is distinguished from other contracts by a number of specific features. One of its defining characteristics is the employee’s subordination to the beneficiary of the work, i.e., the employer. This means that, unlike the civil contract, where the parties enjoy equality, by its nature, the employment contract gives the employer authority over the employee.
By virtue of this relationship of subordination, the employer enjoys three specific prerogatives: organizational, regulatory, and disciplinary.
- The organizational prerogative takes the form of the employer’s ability to determine how his activity is run and the employee’s duties in accordance with the employee’s professional training and the specific nature of the activity, which are set out in the job description;
- The disciplinary power gives the employer the right to control, supervise and discipline the employee. However, disciplinary sanctions are strictly provided for by labor law and cannot be other than a written warning, demotion, reduction of pay, and disciplinary dismissal;
- The normative prerogative, the one on which we will make a more detailed analysis, allows the employer to issue acts with normative value at the unit level in the form of orders, provisions, instructions, internal regulations, etc., these rules of guidance being binding for the employee, subject to their legality, as provided for in Article 40 para. (1) lit. c) of the Labour Code.
How do we assess whether an employer’s provision is lawful?
First, we note that the employer’s right to issue binding provisions is limited by the principle of legality, with the result, per a contrario, that the employee is entitled to refuse to carry out the unlawful provisions.
Secondly, the provisions of the internal rules are equally binding on both the employee and the employer. Therefore, any order of the superior issued in disregard of the internal rules is considered to be unlawful. Also, in an individual employment contract, the provisions concerning the employee’s rights are of a mandatory, binding nature.
In addition, according to the provisions of the Civil Code, the principle that any natural or legal person must exercise their rights and obligations in good faith, in accordance with public order and good morals, is generally applicable.
Thus, if there are rules which expressly provide for the unlawful nature of the activity imposed by the employer’s provision, but also if the performance of the act would infringe the rights and freedoms of the employee or other persons, or if the employer’s provision infringes the internal rules, the job description or the individual employment contract, the employer’s provision may be considered unlawful. For example, if the employer requires an employee to carry out an activity that would constitute a contravention or even an offense, or an activity that contravenes another rule of law, then the employee would be able to refuse to carry out that activity without risking disciplinary action.
What are the consequences of an employee’s refusal to comply with an unlawful provision of the employer?
As we have already pointed out, an employee may refuse to carry out an employer’s mandatory order without incurring any penalty, but only if this is done in violation of the limits of legality, because the unjustified refusal of an employee to carry out the orders and legal provisions of superiors and to perform the duties and tasks of the job, constitute disciplinary misconduct, being disciplinary sanctions.
However, looking at judicial practice, we can see that the employee has been disciplined often due to the refusal to carry out the unlawful order of the superior, the employee has been disciplined. In such cases, the employee has the opportunity to appeal against the disciplinary decision and, if the refusal proves to be justified, the sanction will be declared unlawful and the decision will be annulled.
For example, in one case, it was held that the act for which the employee was sanctioned, i.e., refusing to read electricity meters, since he was employed as a postal worker, could not constitute disciplinary misconduct since that task was not one of the duties laid down in the employee’s individual employment contract and was not related to it.
In another case, it was held that the employee’s refusal to enter into a material security agreement, which would have led to the possibility of the employer making deductions from the employee’s salary, was justified because the law expressly and restrictively provides for cases in which salary deductions may be made. The employee cannot, therefore, be disciplined in that situation since such an obligation imposed by the employer is contrary to the law, and the employee’s refusal to comply with it is justified.
It is important to note that in labor disputes, the burden of proof lies with the employer, who is obliged to provide evidence in his defense, not the employee.
Moreover, it should be noted that in the case of civil servants, the refusal to comply with a provision considered to be unlawful must not only be justified but must also be brought to the attention of the hierarchical superior in writing and stating the reasons, so that it cannot subsequently be imputed to the employee.
Therefore, although the Labour Code expressly provides for the obligation of employees to comply with the employer’s provisions, the mandatory nature is removed when their execution becomes unlawful and would interfere with employees’ rights, morality, and public order. In such a situation, the employee’s refusal to comply with such provisions is justified and cannot legally give rise to any disciplinary sanction.
 Decision no. 137/2021 of 20.04.2021, Constanta Court of Appeal, available on www.sintact.ro;
 Decision no. 245/2021 of 13.04.2021, Iasi Court of Appeal, available on www.sintact.ro.