According to Article 55 of the Labor Code in Romania, the individual employment contract may terminate by operation of law as a result of the parties’ agreement on the agreed date or as a result of the unilateral will of one of them, in the cases and under the conditions strictly provided by law.
What Does Disciplinary Termination of the Employment Contract Mean in Romania?
In Romania, the termination of the employment contract on disciplinary grounds is the way in which the employer unilaterally terminates the employment contract for reasons related to the employee, following the procedure provided by law.
According to Article 61 of the Labor Code, the employer may dismiss an employee on disciplinary grounds in the following situations:
- if the employee has committed a serious violation or repeated violations of work discipline rules or those established by the individual employment contract, the applicable collective labor agreement, or internal regulations, as a disciplinary sanction;
- if the employee is placed in preventive detention or house arrest for more than 30 days, under the conditions of the Criminal Procedure Code;
- if, by decision of the competent medical expertise bodies, the employee is found to be physically and/or mentally unfit, making it impossible for them to perform the duties corresponding to the occupied job;
- if the employee does not meet the professional requirements of the job in which they are employed.
Generally, the employer determines the applicable disciplinary sanction in relation to the severity of the disciplinary offense, considering certain criteria:
- the circumstances in which the act was committed;
- the degree of guilt of the employee;
- the consequences of the disciplinary offense;
- the employee’s overall behavior at work;
- any previous disciplinary sanctions applied to the employee.
Following this evaluation, if the employer finds that the employee’s actions constitute a serious violation of internal regulations or the employment contract, the employer will proceed with the disciplinary termination of the employment contract under Article 61 paragraph (4). To ensure the legality of the termination, the employer must consider the aforementioned criteria when determining the sanction and impose a penalty proportional to the offense.
If the employer intends to dismiss the employee due to a serious or repeated breach of work discipline rules or those established by the employment contract or internal regulations, they must comply with the provisions of Articles 248-253 of the Labor Code.
The aforementioned legal provisions refer to a mandatory procedure that the employer must follow when applying a disciplinary sanction to the employee. Thus, for dismissal, the employer must conduct a disciplinary investigation to determine the facts and provide the employee with the opportunity to present arguments in their defense, all within a framework supervised by specialized personnel or a disciplinary committee.
The disciplinary dismissal procedure is divided into the following stages:
- Preliminary Stage
- Establishing the commission of the act by the employer;
- Notifying the committee and appointing the committee or a specialist in labor law;
- Notifying the employee by the committee’s president or an external consultant about the disciplinary investigation, including the time, place, and subject of the disciplinary termination;
- Hearing the employee and collecting evidence by the committee. If the employee does not attend the hearing without an objective reason, under Article 251 paragraph (3) of the Labor Code, the employer may impose disciplinary sanctions without following the full procedure;
- Registering the preliminary disciplinary dismissal report with the employer.
- Issuing the Disciplinary Sanction Decision
The employer will issue the disciplinary sanction decision based on the prior report prepared by the committee or the assigned persons.
Decision on Disciplinary Termination of the Employment Contract in Romania
According to Article 252 paragraph (1) of the Labor Code, the employer will issue the disciplinary sanction decision in writing within 30 days from the registration of the preliminary disciplinary investigation report at the unit’s registry, but no later than 6 months, according to RIL 16/2012.
The decision to terminate the employment contract on disciplinary grounds must include, under penalty of absolute nullity:
- a description of the act constituting a disciplinary offense;
- the specific provisions from the personnel statute, internal regulations, individual employment contract, or applicable collective labor agreement that were violated by the employee;
- the reasons for dismissing the employee’s defenses during the preliminary disciplinary investigation or the reasons why, under Article 251 paragraph (3), the investigation was not conducted;
- the legal basis for applying the disciplinary sanction;
- the deadline for challenging the sanction;
- the competent court where the sanction can be challenged.
The decision must be communicated to the employee within 5 days from its issuance via registered mail or electronic mail and takes effect upon communication. The employee may challenge this decision in the competent court within 30 days. According to Article 269 paragraph (2) of the Labor Code, the competent court is the one in the jurisdiction of the employee’s domicile or residence.
Disciplinary Termination of the Employment Contract in Romania – Consequences
After the employee is informed of the disciplinary sanction decision applying the sanction provided in Article 248 paragraph (1), letter e of the Labor Code, the employment contract ceases to exist.
If the employer fails to follow the preliminary disciplinary investigation procedure or if the disciplinary sanction decision does not contain all the details required by Article 252 paragraph (2) of the Labor Code, it will be subject to absolute nullity, which may be declared by the competent court.
If the disciplinary sanction decision is unlawful or unfounded, the court will annul the dismissal, order the employer to pay the employee’s wages, updated and increased as necessary, along with any other benefits the employee would have received, and restore the parties to their initial situation at the employee’s request.
Moreover, the High Court of Cassation and Justice, through Decision 11/2013, ruled that the court reviewing the challenge against the disciplinary termination decision may individualize the sanction imposed by the employer, and if it finds that it is disproportionate, it may replace it with a lighter disciplinary sanction. In such cases, seeking guidance from a Romanian lawyer specialized in labor law can help ensure compliance with legal provisions and protect the employee’s rights.
Disciplinary Offenses – Labor Code
According to Article 247 paragraph (2) of the Labor Code, a disciplinary offense is an act committed by the employee, either by action or inaction, with guilt, violating the provisions of the employment contract, internal regulations, or lawful orders given by superiors, regardless of whether or not damage was caused.
Such an offense may be serious if, due to its severity, it attracts the most severe disciplinary sanction, or it may be a repeated offense that, even if it has not caused significant consequences, still constitutes a violation. Therefore, to classify certain employee actions as disciplinary offenses, we do not assess only the act itself but also the employer’s regulations set forth in the employment contract, internal regulations, and other mandatory provisions.
Common examples of disciplinary offenses include leaving the workplace during working hours without superior approval, performing personal activities during working hours, unexcused absences, unjustified delays, or any actions endangering the safety of the employer and other employees.
In conclusion, as a general rule, violating any internal norm, regardless of the name of the respective document, constitutes a disciplinary offense if it was previously communicated to the employee.
