Ana Iovu
Sometimes employers have to deal with more problematic employees who commit multiple violations of their work obligations. In certain cases they are not significant, but there are cases when the seriousness or repetition of the infringements leads to the need to apply disciplinary sanctions to problematic employees in order to avoid negatively affecting the work process and other employees. Unfortunately, even after the application of a disciplinary sanction, some employees continue to commit violations of their work obligations, in this context I will further describe when and how the employer could fire an employee if he commits a repeated violation of his work obligations.
The termination of the employment agreement can occur in case of repeated infringement of the labour responsibilities, within one year, if disciplinary sanctions were earlier applied (art.86 para. 1 letter g) of the Labour Code).
In the case when a sanction for one or several infringements was previously applied to an employee and after that the same employee committed a new infringement, the employer has the right to fire him. Although the issue is not that simple, because for the termination of the employment agreement implies the existence of certain conditions and the careful following of the procedure provided by the law. As usual, when we talk about dismissals, the courts are very vigilant in verifying the correct application of the law, and in the case of illegal dismissal, the employer will have to bear at least material consequences.
First of all, we draw your attention that according to the judicial practice, in case of a litigation, there is a big probability that the court will analyse the correctness of the sanction previously applied and the legality of the previous order on sanctioning, regardless of whether or not it has been challenged.
The Labour Code provides for 4 general disciplinary sanctions for violating labour discipline:
a) warning;
b) reprimand;
c) severe reprimand;
d) dismissal (on the grounds provided for in art. 86 par. (1) letter g)-r).
The legal provision does not provide what kind of disciplinary sanction should have been previously applied, so any of them besides dismissal.
For the application of art.86 para. 1 letter g) of the Labour Code, the disciplinary sanction applied prior to the date of the repeated infringement of the labour responsibilities should:
– not be revoked: The employer who applied the disciplinary sanction has the right to revoke it within one year on his own initiative, at the employee’s request, at the request of the employee’s representatives or the employee’s immediate boss. The validity term of a sanction cannot exceed one year, from the date of its application. If during this term the worker will not be subject to new disciplinary punishments, it is considered that he didn’t have any disciplinary punishment. (art.211 (1) of the Labour Code)
– be applied by the empowered body to apply the disciplinary sanctions (the body, that is granted with the right of employment (election, confirmation or appointment for a position) of the employee (art.207 of the Labour Code)).
It is important to take into account that only one sanction can be applied for the same disciplinary violation (art. 206 para. 4 of the Labour Code). So, for dismissing the employee there should be a new infringement of his work obligations than the one mentioned in the first Order of sanctioning.
When and how the disciplinary sanction should be applied?
As I mentioned above, dismissal is one of the 4 general disciplinary sanctions for violating labour discipline, so the general rules regarding applying disciplinary sanctions apply, with some particularities as we describe below.
How?
We recommend that if there are complaints regarding recent actions of an employee, that could be considered as infringements of his work obligations, to initiate a service investigation. (Art. 2 of the Art. 208 of the Labour Code: ”(2) Depending on the gravity of the offence committed by the employee, the employer has the right to organize a service investigation, the duration of which may not exceed one month. In the course of the investigation the employee has the right to explain his position and present to the person, authorized to conduct the investigation, all the proofs and justifications which he considers necessary.”)
We suggest organizing a service investigation if you want to dismiss the employee for repeated infringement of labour responsibilities in order to have evidence, impartial witnesses of his misconduct and employee’s written explanation on this matter. This evidence will help you in court in case of a trial.
Another aspect worth accentuating, is that until the application of the disciplinary sanction, the employer is obliged to ask the employee in writing for a written explanation regarding the deed committed. The explanation regarding the committed deed can be presented by the employee within 5 working days from the date of the request. The refusal to provide the required explanation shall be recorded in a report signed by a representative of the employer and a representative of the employees.
At the same time, we draw your attention to the fact that when dismissing the employee due to repeated breaches of work obligations, according to the recommendations of the Supreme Court of Justice, our courts shall verify whether the employer has taken into account the repeated application of the disciplinary sanction the seriousness of the disciplinary violation committed, so the committed infringement should be of a higher level of gravity.
According to art. 210 of the Labour Code: (1) The disciplinary punishment is applied through an order (decision, disposition) in which are specified:
a) the actual reasons and legal grounds for applying the disciplinary punishment;
b) term in which the sanction can be contested;
c) body in which, it is possible to contest the sanction.
(2) The order (disposition, decision) on sanctioning, except for the disciplinary sanction in the form of dismissal according to art.206 paragraph (1) letter d) which is applied in compliance with art.81 paragraph (3), is communicated to the employee, under signature or by another method that allows confirmation of receipt/notification, within a maximum of 5 working days from the date of issue, and if it operates in an internal subdivision of the unit (branch, representative office, decentralized service, etc.) located in another locality – within a maximum of 15 working days and takes effect from the date of communication. The employee’s refusal to confirm by signature the communication of the order is fixed in a report signed by a representative of the employer and a representative of the employees.
In our case, if a order on dismissal will be issued based on art. 86 para. (1) letter g) of the Labour Code, the term of communication provided by para. 2 of art. 210 of the Labour Code will not apply, because this disciplinary sanction in the form of dismissal is an exception, as it is mentioned in this legal provision, so, it is applied in compliance with art.81 paragraph (3) which provides that:
(3) The individual employment contract terminates on the basis of the order (disposition, decision) of the employer, which is brought to the attention of the employee, under signature or by another method that allows confirmation of receipt/notification, at the latest on the date of dismissal, unless the employee does not work until the day of dismissal from work (unjustified absence from work, deprivation of liberty, etc.). The order (disposition, decision, decision) of the employer regarding the termination of the individual employment contract must contain a reference to the corresponding article, paragraph, point and letter of the law.
Regarding the content and the form of the order on sanctioning, it should contain both the actual reasons and the legal grounds, which means that the factual circumstances shall be described, including reference to the explanations of the employee, if there are any, also there should be indicated the provisions that were violated and also the ones that regulate the procedure of sanctioning from the internal documents and from the Labour Code.
In this context, we mention that it is very important to have the proof of the fact that if the employee is guilty of not respecting the provisions of some internal documents, those internal documents have been previously brought to the employee’s notice under signature or by another method that allows confirmation of receipt/notification, because if they were not, then the court might consider that the Order is illegal.
When?
Art. 209 of the Labour Code provides that, The disciplinary sanction is applied, as a rule, immediately after the finding of the disciplinary violation, but not later than one month from the day of its finding, without taking into account the employee’s time on annual leave, study leave or leave medical.
At the same time, the disciplinary sanction cannot be applied after the expiration of 6 months from the day of committing the disciplinary violation, and following the revision or control of the economic-financial activity – after the expiration of 2 years from the date of the commission. The indicated terms do not include the duration of the criminal procedure.
It is very important the term provided by art. 209 of the Labour Code to be respected.
During the investigation could be found infringements that were committed more than 1 month ago, without taking into account the employee’s time on annual leave, study leave or medical leave, and in this regard could be made a Protocol/report in which will be described the infringement, in order the day of the report to be considered the day of finding the disciplinary violation, and in dependence of that day art. 209 of the Labour Code to be applied.
The day from which the “one month” mentioned in art. 209 para. 1 is counted is interpretable, so, it may represent the day when the deed that represents an infringement was discovered, but it may also mean the day the infringement was established through a decision of a competent person/department.
In this sense, some doctrinaires mention that the term of one month is calculated from the date of finding out about the violation liable to be sanctioned, while in practice there are cases in which the term is calculated from the date of establishment by a certain act of the competent person / commission that is empowered to ascertain disciplinary violations.
In order to avoid possible problems, we recommend the one to be calculated from the date on which it was found about the actions likely to be sanctioned, without taking into account the employee’s time on annual leave, study leave or medical leave.
The above-mentioned are general aspects that are applicable to the described case, however, in each specific situation, the particularities of the case are to be analysed. What must be remembered is that the Labour Code and the normative acts in the field establish the minimum level of labour rights and guarantees for employees, respectively through the internal documents of the company more rights and guarantees can be established. Thus, every time it be taken into account what is written in the employer’s internal regulations, the collective labour contracts, the individual labour contract and other internal documents that regulate labour relations.
At the end, we draw your attention to the fact that in cases involving employees, the jurisprudence is on their side, respectively, when terminating an employment agreement, the procedure provided by law must be respected and followed with diligence.
