Termination of the Individual Employment Contract under the provisions of Article 61(a) of Law 55/2003 – Labour Code. The commission by the employee of a serious disciplinary offence or repeated breaches of the rules of labour law or those laid down in the collective labour contract or internal regulations.

The current legislation – Article 55 of Law 53/2003 – Labour Code – regulates the termination de jure of the Individual Employment Contract following the agreement of the parties or following the unilateral volition of one of the participating parties, employee or employer.

The unilateral volition of one of the parties to terminate an employment relationship may take the form of dismissal when the initiative belongs to the employer and resignation in the form of the employee’s unilateral manifestation to terminate the legal employment relationship.

When the initiative to terminate the Individual Employment Contract belongs to the employer, it is necessary to pay greater attention to all legal procedures and steps taken to terminate an employment relationship, as unlawful dismissals are the subject of most labour law disputes due to formal or procedural irregularities in the decisions issued to terminate the employment relationship.

Article 58(2) of the Labour Code provides that dismissal may be ordered for reasons related to the employee or for reasons not related to the employee and Article 61 of the same law lists those particular cases in which the employment relationship may be terminated at the initiative of the employer for subjective reasons.

The termination of the Individual Employment Contract for disciplinary reasons is determined by the employee committing a serious disciplinary offence or repeated breaches of the rules of labour discipline or those established by the Collective Labour Contract or Internal Regulations, a hypothesis governed by the provisions of Article 61(a) of the Labour Code.

Labour discipline is one of the basic principles of labour relationship regulation. Respect for labour discipline is a fundamental obligation of every employee [with reference to the provisions of Article 39(2)(b) of the Labour Code], the concept being defined as the state of order that is achieved in the conduct of a collective activity through the consistency between human conduct and the established norms or rules, which, once violated, entails the possibility of disciplinary liability.

1. The Notion of Repeated or Serious Disciplinary Misconduct.

The definition of disciplinary misconduct is given by Article 247 of the Labour Code as an act in connection with work, consisting of an action or inaction committed wilfully by the employee, whereby the employee has violated the legal rules, internal regulations, the applicable individual employment contract or collective labour contract or the orders and legal provisions of line managers.

From the definition provided by the legal text, certain clarifications are necessary. In addition to the existence of an unlawful act and the occurrence of a harmful result and the existence of a causal link between the act and the harmful result, it is necessary to establish the fault of the employee in causing the harmful result.

Therefore, not every action or inaction that violates the rules of labour discipline is a disciplinary offence giving rise to the exercise of the employer’s disciplinary prerogative, since the act must be considered punishable, i.e. it must have been committed culpably (regardless of whether it is intentional or negligent, direct or indirect).

By way of example, failure to ensure the conditions necessary for the performance of work may constitute a well-founded justification for failing to carry out work duties, thus the employee can no longer be considered guilty of such.

The premise for the termination of the individual employment contract is given by the recurrence of disciplinary offences, the recurrence being that, following the finding of repeated breaches of employment obligations, the employer may form the conviction that the employment relationship cannot continue due to the employee’s tendency to continue to commit offences.

The facts that can be taken into account to justify the disciplinary termination of the employment contract for repeated misconduct must be facts for which a disciplinary sanction has not already been applied, otherwise the uniqueness of the disciplinary sanction governed by the provisions of Article 249(2) of the Labour Code.

The notion of serious disciplinary misconduct is not defined in the Labour Code, Article 250 listing instead the criteria for establishing the disciplinary sanction:
(a) the circumstances in which the offence was committed;
(b) the degree of negligence of the employee;
(c) the consequences of the disciplinary offence;
(d) the employee’s general conduct at work;
(e) any disciplinary sanctions previously suffered by the employee.

We can conclude that serious disciplinary misconduct is the act duly assessed according to the criteria laid down by labour law, committed intentionally and which, by its nature and consequences, makes it impossible to continue the employment relationship with the employer, justifying the disciplinary termination of the employment contract.

2. Disciplinary Investigation.

The employee’s disciplinary liability and the employer’s associated right to apply a disciplinary sanction shall arise when an act is qualified as disciplinary misconduct, following the preliminary disciplinary investigation under the conditions regulated by the Labour Code.

The disciplinary investigation procedure is a condition of validity for the issuing and application of any disciplinary decision provided for by the labour law, including the termination of the individual employment contract for committing a serious disciplinary offence or repeated breaches of labour discipline. An exception to the established rule is the warning, which is the easiest form of disciplinary sanction.

Article 63 of the Labour Code provides that “The dismissal caused by serious or repeated disciplinary offence against the labour discipline rules may only be decided after the employer carries out the preliminary disciplinary hearing and within the deadline laid down in this Code. ”

The role of the procedural rules is to ensure the effectiveness of the punishment of harmful acts and behaviour in the work process by applying sanctions appropriate to the facts committed and to guarantee the accurate establishment of the facts giving rise to disciplinary liability, whilst guaranteeing the employee’s right of defence.

The disciplinary investigation procedure is governed by Article 251 of the Labour Code and starts with the notification of the management bodies about the commission of a disciplinary offence, usually through a report of the disciplinary offence followed by the actual investigation of the fact that may be a disciplinary offence.

For the purpose of the preliminary disciplinary investigation, the employee will be notified in writing by the designated person, the chairman of the committee or the external consultant, of the subject, date, time and place of the meeting.

The Labour Code does not provide for the use of electronic means for the transmission of the notice; in practice it is most often used the direct delivery of the notice under signature of receipt or transmission by post with acknowledgement of receipt, but it can be considered that such a communication can be valid to the extent that the communication and receipt of the notice is unequivocal.

To carry out the disciplinary investigation, the employer will appoint a person or appoint a committee or call on the services of an external consultant specialising in labour law, whom the employer will appoint.

The power to designate the person carrying out the disciplinary investigation and to appoint the committee rests with the legal representative or any other person authorised for this purpose by the employer’s legal representative.

Although it is not expressly required by law, the appointment of the disciplinary investigation committee must take the form of a decision confirming the mandate granted by identifying the persons empowered to carry out the disciplinary investigation, but in most cases, the members of the disciplinary investigation committee are determined by the collective employment contract or by internal regulations.

Listening to the employee and observing the right of defence is a condition for the validity of the sanctioning act itself, the employee having the right to formulate and support all the defences he/she considers necessary, having the possibility to propose evidence to prove his/her innocence as well as to be assisted by an external consultant specialised in labour law (lawyer, expert specialised in labour law or mediator specialised in labour law) or by a representative of the trade union of which he/she is a member.

Proof that the employee has been interviewed may be provided by the employee’s written statement or by the document in which the investigator reports the statements made in his/her defence.
Failure of the employee to attend the meeting without an objective reason shall entitle the employer to sanction him/her without prior disciplinary investigation.

The report of the disciplinary investigation committee is the final act of the disciplinary investigation and contains the conclusions of the disciplinary investigation committee. The report of the disciplinary investigation committee is a tool that can facilitate a decision on the non-application/application of a disciplinary sanction, which includes a list of the documents on which the disciplinary investigation was based, the minutes of the hearing of the employee under investigation, other reports drawn up by the disciplinary investigation committee and the defences put forward by the employee, the conclusions of the disciplinary investigation committee, the list of legal or conventional provisions which the employee concerned has violated as a result of the offence and, last but not least, the proposal not to apply or to apply a disciplinary sanction, where appropriate, and the indication of the sanction which, in the opinion of the disciplinary investigation committee, would be proportionate to the seriousness of the offence, in the view of the disciplinary investigation committee.

3. Disciplinary Decision.

The application of the disciplinary sanction of termination of the individual employment contract is governed by the mandatory time limits laid down in Article 252 of the Labour Code.

The disciplinary sanction shall be applied by means of a written decision issued within 30 calendar days from the date of becoming aware of the disciplinary offence, but no later than 6 months from the date of the offence.

The date of becoming aware of the commission of the disciplinary offence from which the 30-day period for the application of the disciplinary sanction starts to run is the date of registration of the final report of the preliminary disciplinary investigation at the unit’s registry, this being in fact and in law the moment when the conduct was established and qualified as a disciplinary offence.

The 30-day period has the characteristics of an extinctive limitation period, being susceptible to causes of interruption or suspension and sanctioning the inaction of a person who is in a position to act but who intends to remain passive.

On the other hand, from the point of view of the legal nature, the 6-month period is forfeited, and runs from the date of the commission of the disciplinary offence and not from the date of its discovery, therefore, the employer must be aware of the commission of this offence and it is presumed that an act not sanctioned within 6 months from the date on which it was committed no longer justifies the application of a sanction.

The content of the decision to terminate the individual employment contract is governed by Article 252(2) which provides that, under penalty of absolute nullity, the decision must contain:
(a) a description of the act representing disciplinary misconduct;
(b) the specification of the provisions of the Personnel Statutes, Internal Regulation, Individual Employment Contract or the applicable Collective Labour Contract which have been violated by the employee;
(c) the reasons why the employee’s defences were rejected during the preliminary disciplinary investigation or the reasons why, under the conditions provided for in Article 251(3), the investigation was not carried out;
(d) the legal basis on which the disciplinary penalty is imposed;
(e) the deadline within which the sanction may be appealed;
(f) the competent court to which the sanction may be appealed.

The factual motivation of the sanctioning decision consists of the description of the misconduct through the consequences it caused in the work process, the possible damage caused, the employee’s background and the extent of the guilt of the employee. The statement of reasons must also indicate the evidence on the basis of which all these elements have been established.

The legal reasoning is limited to the express indication of the provisions violated by the employee, the generic indication of the violation of the provisions of the Internal Regulation or of the Individual or Collective Labour Contract being equivalent to the lack of indication of the legal provisions violated.

The communication of the sanctioning decision shall be made no later than 5 calendar days from the date of issue and shall produce its specific effects from the date of its actual receipt by the employee.
The notice shall be delivered personally to the employee, with a signed acknowledgement of receipt, or, in the event of non-receipt, by registered letter, to the address of domicile or residence of the employee.
The obligation to communicate the sanctioning decision ensures that the person has the opportunity to become aware of the factual and legal reasons for his/her sanction, the general effect of communication being that it marks the moment from which the sanction is applied.

From the moment the communication is made, the employer has the right to proceed with the enforcement of the sanction, the decision thus issued being enforceable, and any appeal against the sanction does not suspend enforcement.

4. Litigation in Connection with Disciplinary Termination of Individual Employment Contracts.

The employee may appeal against the sanction decision to the competent courts within 30 calendar days from the date of its communication.

While according to Article 252(2) of the Labour Code, failure to indicate the time limit within which the disciplinary sanction decision may be challenged is sanctioned with absolute nullity, the erroneous indication of a shorter or longer time limit does not entail the nullity of the decision issued.

In the case of erroneous indication of a period longer than that provided for by law, judicial practice recognises the mitigation in employment matters of the rule according to which the party may not plead ignorance of the law as a defence, stating that the purpose of regulating the content of the sanction decision is to inform the employee fully and accurately not only of the facts, reasons and legal grounds on which the sanction is imposed, but also of the remedies and deadline within which he/she has the right to challenge the merits and legality of the measures ordered unilaterally by the employer.

Thus, a possible appeal against the sanctioning decision, made after the 30-day deadline, considering the wrong deadline indicated by the employer, will not be subject to the penalty of lateness.

Following the same principle of protecting the employee in his/her relations with his/her employer, the indication of a shorter deadline than the legal one does not restrict his/her right to appeal against the sanctioning decision within 30 days from the date of its issuance.

In labour law litigation concerning the unlawfulness of a dismissal decision, two particularly important principles of law apply in matters of evidence:
1. The burden of proof is on the employer which is thus obliged to submit evidence in its defence to the court;

2. The employer may not plead before the court any factual or legal grounds other than those specified in the dismissal decision.
Thus, although it is not necessary for the reasons for dismissal to be detailed, the decision drawn up by the employer must indicate, even in a succinct but sufficiently clear form, without general wording, the reasons for dismissal in order to enable the employee to know the real reasons for his/her dismissal.

The effects of a finding of unlawfulness or unreasonableness of a dismissal decision oblige the employer to pay compensation equal to the indexed, increased and updated wages and other rights from which the employee would have benefited.
Moreover, at the request of the employee, the court that ordered the annulment of the dismissal will reinstate the parties in the situation prior to the issuance of the dismissal document, otherwise, the individual employment contract will be considered terminated de jure as of the date of the final and irrevocable judgement in the case.
Regardless of the type of termination of the Employment Contract, the employer is not exempted from its obligations in terms of payroll, the payment of unpaid salary rights, the compensation in money for untaken leave days, the granting of compensation to the employee, which can be requested by the entitled person even after the termination of the employment relationship, within the deadlines provided for in Article 268 of Law 53/2003 – Labour Code.

Claims relating to labour disputes, as this category of disputes is determined by the provisions of the Labour Code, of Law 62/2011 on social dialogue, of Law 263/2010 on the unitary system of public pensions, as well as by those of special laws fall within the jurisdiction of the court in whose district the claimant is domiciled or resides or, as the case may be, has its registered office.

Applications to the court concerning the settlement of labour disputes shall be exempt from stamp duty.

All the aspects mentioned above are intended to highlight the role of compliance with basic principles and rules when the employer, having been informed of serious or repeated disciplinary misconduct by an employee, finds it justified to terminate the employment relationship in order to protect itself from damage to its activity through acts committed and attributable to the employee(s).

In conclusion, the termination of employment contracts of employees of any employing entity requires strict compliance with the procedures described above, any deviation from them having a high potential risk in terms of the termination of the dismissal measures in court, with considerable financial consequences for the employer.

Atty. Silvia Neag