The Code of Labor Laws regulates cases of termination of an individual employment contract, while the legislator distinguishes between the legal termination of an individual employment contract (for example, in connection with the termination of the employer – a legal entity or the expiration of the term of the employment contract). individual employment contract concluded for a certain period), termination by agreement of the parties and, finally, termination at the unilateral will of one of the parties (in case of dismissal or dismissal).

One of the cases of termination of an individual employment contract at the initiative of the employer is dismissal of the employee from disciplinary liability. Despite the fact that this problem is not sufficiently settled, in the practice of the courts, over time, a number of aspects have emerged that the employer must take into account when proceeding with the dismissal of employees, otherwise risking the fact that, in the event of an appeal by the employee, the dismissal decision must be annulled, with the consequence the return of the parties to the previous state and the employer’s obligation to pay the employee compensation in the amount of indexed, increased and updated wages and all other rights that the employee could have enjoyed if he had not been dismissed.

Facts for which disciplinary dismissal may be applied. rightArt. 61 of the Criminal Code,Disciplinary dismissal may be applied in the event of serious or repeated disciplinary violations by an employee of the rules of labor discipline or established by an individual labor contract, collective agreement or rules of internal procedure. Being in the field of labor law, burden of proof in such litigation, it falls to the employer as a derogation from the rule that the plaintiff must prove his case.

The decision to initiate a disciplinary investigation. The procedure for dismissal on disciplinary grounds begins with disciplinary researchits absence entails the sanction of invalidity of the dismissal decision [1]. In this sense, the employer will issue a the decision to initiate a disciplinary investigationin which he notes the facts that will be the subject of the disciplinary investigation, creates a disciplinary investigation commission or appoints a person and authorizes the disciplinary investigation commission or the appointed person to organize and manage the procedures, accordingly perform any other formalities related to the disciplinary investigation (for example, questioning witnesses or subpoenaing an employee).

Despite the fact that the question of whether a disciplinary investigation should be conducted by a single person or whether a disciplinary commission can be established was a controversial issue, due to the changes made by Law No. 213/2020 of the Labor Code of Labor and Employment, the legislator clarified that for conducting a disciplinary investigation, the employer appoints Person or will install commission OR will turn to the services of an external consultant on labor legislation, what authority he/she will provide in this regard. In any case, if the employer decides to establish a disciplinary investigation committee, to avoid situations where its members cannot agree, it is recommended that it consists of an odd number of people. As a rule, persons authorized to conduct a disciplinary investigation cannot, in turn, appoint another person to conduct the investigation. [2].

Despite the fact that there is no direct rule in the Labor Code, there are no obstacles to holding meetings of the disciplinary investigation commission/authorized person with the participation of a notary who proceeds to certify the facts, in accordance with the provisions of the Labor Code. Art. 12 of the Law on Notary and Notarial Activities No. 36/1995.

Convocation of the employee. After issuing a decision on initiation of a disciplinary investigation, the employee will summoned in writing, specifying the topic, date, time and venue in the message. The summons can be served service personnel (however, in this case, the employee must sign for receipt, for example, on a copy of the summons) [3] or it could be sent by registered mail with acknowledgment of receipt or through bailiff. We believe that there should be a reasonable period of time between the date of service of the summons and the date of summons, and in judicial practice, a period of 5 days was considered sufficient.

As a rule, the disciplinary investigation is conducted at the employer’s premises due to lower costs. However, nothing prevents the employer from choosing another place, outside its main office, to conduct a disciplinary investigation. [4]however, in this case, the additional costs cannot be placed on the shoulders of the employee in any way.

For preliminary disciplinary investigation, the employee has the right to formulate and maintain all defense arguments in his favor and to provide the committee or person authorized to conduct the investigation with all the evidence and reasons he considers necessary, as well as the right to receive assistance, at his request, by an external consultant specializing in labor law , or a representative of the trade union of which he is a member. A lawyer can also help an employee during a disciplinary investigation.

Minutes are drawn up on the occasion of the meeting. All aspects discussed during the meetings of the disciplinary inquiry committee/authorized person are recorded in a report, which is signed by the members of the disciplinary inquiry committee or the authorized person and the employee under investigation. If the latter refuses to sign the protocol, a corresponding note is made in its contents. Also, this aspect can be certified by a public notary if he participates in the work of the disciplinary investigation commission/authorized person.

In addition, the employee’s refusal to appear when summoned without an objective reason entitles the employer to impose fines, without conducting a preliminary disciplinary investigation.

Decision on dismissal. Finally, the disciplinary inquiry committee/authorized person prepares a report, which is registered in the register of the unit. [5]. After drawing up a protocol by the disciplinary investigation commission or an authorized person, the employer decides on the sanction applied to the employee, without being bound by his offer. In other words, even if the act drawn up as a result of the disciplinary investigation proposes to dismiss the employee, the employer will be able to issue a reasoned order to dismiss him from responsibility.

Appealing the dismissal decision. If the employer decides to dismiss the employee, he will issue a decision accordingly dismissal decision, which can be appealed by the employee within 30 calendar days from the date of notification.

In summary, the procedure for dismissing an employee on the grounds of disciplinary responsibility is extremely strict, and failure to comply with it can result in the application of one of the most severe sanctions by the court, namely the annulment of the decision to dismiss with all the consequences that follow. Therefore, it is advisable for employers, when making a decision on disciplinary dismissal, to make sure that the entire preliminary investigation procedure was organized and carried out in accordance with the law, and that the dismissal decision met all the requirements of legality.

Footnotes:

[1] See Gilka Church. KZpP commented and noted. Rosetti Publishing House 2015, p. 688

[2] See Alexander Tsikleya. The Labour Code. Relevant legislation. Comments. Science of law. Universul Juridic Publishing House, Bucharest 2020, page 952

[3] The same

[4] The same

[5] See Gilka Church. KZpP commented and noted. Rosetti Publishing House 2015, p. 690

The article was signed by Andreia Gurica ([email protected]), a lawyer, STOICA & Associates. ​​​​​​​