DISCIPLINARY INVESTIGATION OF EMPLOYEES IN ROMANIA

DISCIPLINARY INVESTIGATION OF EMPLOYEES IN ROMANIA

 

Your employees do not adhere to work discipline?

According to Romanian Labor law the employer has disciplinary prerogative - the right to ascertain, investigate, and sanction such uncompliant behaviour, whether it involves not complying with employees’ legal obligations, the ones stipulated in the individual employment contract or the applicable collective labour agreement, in the Internal Regulation, or the legal orders and instructions of managers.

However, before any disciplinary sanction a prior disciplinary investigation procedure is needed.

Failure to follow this procedure, to comply with its legal steps and conditions, including those concerning the mandatory content of documents prescribed by law, results in the absolute nullity of any potential Sanction. It will be considered that the respective sanction was never applied, and you will be required to reinstate the sanctioned employee, pay their lost wages due to the unlawful sanction, or even compensate them for other damages.

The success of the disciplinary procedure significantly depends on the Internal Regulation‘s provisions.

 

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The Romanian Labor Law expressly provides in Article 242 that the employer's Internal Regulation must MANDATORILY contain:

1. Specific rules regarding work discipline, precisely describing the behaviour you demand or prohibit during worktime (e.g., prohibition on using company resources for personal interest, prohibition on taking out the workplace the documents, obligation to comply with personal data protection measures; handling repeated, unmotivated absences, prohibition on aggressive behaviour towards colleagues and clients, etc.).The things must be very clear and detailed in this regard.

 

2. What shall be considered a disciplinary offenses and applicable sanctions; It is crucial to qualify the actions you do not tolerate as disciplinary offenses and further clearly differentiate those you consider severe and define what constitutes REPEATED misconduct (including repeated offenses of the same or different nature).

In this way, you will make clear from the beginning the consequences employees face in case of misconduct, and you can easily PROVE PROPORTIONALITY in applying the sanction (sanctions should be applied based on certain criteria, including the severity of the act/omission, and a serious disciplinary offense will justify a more drastic sanction, to correct the employee's future conduct). An example - the most severe disciplinary sanction—dismissal—permitted by the Romanian Labor Code only in cases of severe or repeated offenses.

The employee can challenge the sanction before the courts, potentially obtaining its replacement with a proportional, less severe sanction, based on the legal criteria, namely:

• Circumstances – e.g., if it involves a new employee who hasn't had sufficient time to fully understand internal rules, whether the employee was adequately trained for a specific task, if the employee is in the notice period, if the offense occurred during a more complex or simpler task (indicating disinterest and lack of efficiency and involvement).
• Culpability – whether the employee intended or could foresee the consequences of their actions. Intentionally acts or acts committed foreseeing the potential consequences are more severe and may attract harsher sanctions than mere negligence.
• Consequences – whether the company suffered a loss, if other employees' or third parties' rights were harmed, their extent and reversibility. In such cases, a Damage Evaluation Report should be prepared, determining the damage calculation mechanism.
• The employee’s general conduct/behaviour during the employment relationship and if there were other offenses in the past. A repeated offense proves that the previous sanction did not achieve its purpose.

 

3. Rules regarding how the disciplinary procedure will be conducted – rules that concern how to proceed in the event of a potential offense, who documents the relevant aspects, to whom is it reported, who appoints the Disciplinary Committee and how, what documents shall be prepared, how will be the employee informed and summoned for the investigation, etc.

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STEPS OF THE DISCIPLINARY PROCEDURE

 

I. PREPARING A FACT-FINDING DOCUMENT

To hold the employee disciplinarily accountable, the offence must be discovered within 6 months of its occurrence.

The first step is identifying the employee's potential misconduct - whether it involves a complaint from another employee, findings of a manager, facts revealed during an audit, or annual checks. In all cases, a written fact-finding document should be prepared – the offence date shall be specified.

According to the Romanian labour regulations, a sanction can be applied within 30 calendar days from the moment you discover the misconduct, but nor later than the abovementioned 6 months time limit.

 

II. APPOINTING THE DISCIPLINARY COMMITTEE

The committee should consist of an odd number of members - usually, in practice, it has, 3 members. It is advisable that senior management should not be part of the disciplinary committee but may assist/participate in the investigation.

Appointing the person who will summon the employee and the person who will collect data and information for the investigation.

 

III. SUMMONING THE EMPLOYEE FOR DISCIPLINARY INVESTIGATION

The summons should be done in writing, with proof of receipt (handing the summons directly to the employee under a signature, sending it to the employee's residence address with confirmation of receipt, or via personal email with a request for proof of receipt).

There must be sufficient, reasonable time between the delivery of the summons and the investigation date, for the employee to prepare their defence and, if necessary, hire a lawyer or contact union members - to be assisted by one of them during the investigation (the employee has this legal rights).

Conducting face-to-face investigations – as a rule, the investigation should be conducted face-to-face, not through written exchanges between the employer and the employee. The unjustified absence of the legally summoned employee allows for sanctioning without prior investigation.

We must emphasize that the employee must be allowed to exercise their legal rights during the investigation, including the right to defend themselves using all legal means (presenting documents, explanations, any evidence permitted by law) and to be assisted by a lawyer or a union representative.

 

IV. GATHERING EVIDENCE

A particular question arises in this context —may surveillance camera footages obtained from work premises be used as evidence in the disciplinary investigation? The answer is YES but under certain conditions - more details can be found here. Briefly, the following conditions must be met:

• Cameras should not be installed in areas where there is a legitimate expectation to not be monitored, according to European authority guidelines, and their presence should be adequately signalled.
• A prior impact assessment and proportionality analysis for processing in this purpose should be conducted—e.g., it shall document the history of similar offenses in the unit and less intrusive prevention alternatives previously attempted without success.
• Before implementing the decision to use cameras for this purpose, prior consultations with the union/employee representatives (if any) should be held.
• Employees should be previously informed about the video surveillance conditions and, explicitly, about the possibility of using video images for this purpose.
• This purpose cannot justify a continuous real-time monitoring of employees, or the unreasonable extension of processing periods established in the Internal Video Surveillance Policy.
• Appropriate procedures for preserving relevant data are needed.
• Video images should also be available to the employee in question to prepare his defence.
• Using such images should not infringe on the rights and legitimate interests of other persons filmed in the same footage.

It is considered that such processing primarily falls under the employer's prevailing legitimate interest. In some cases, such as when the offense involves an aggression against a colleague or could lead to contamination affecting final consumers, other legal grounds may also exist.

Even if an explicit consent document is signed by the employee for processing in this purpose, European authorities conclude that such consent is generally not considered valid (freely given).

 

V. COMPLETING THE INVESTIGATION

The investigation procedure must be documented in writing through a Report signed by all those present at the investigation.

 

VI. ISSUING THE DISCIPLINARY DECISION

The result of the disciplinary investigation, along with other mandatory minimal mentions prescribed by law, is recorded in the Disciplinary Decision.

The Decision shall be communicated to the employee within a maximum of 5 calendar days from its issuance. The Decision will produce effects after its communication.

The employee has 30 calendar days to contest the Disciplinary Decision before the courts.

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There are cases for which the Romanian Labor Code expressly prohibits disciplinary sanctions, such as:

• Participating to a lawfully initiated and conducted strike.,
• Refusal of delegation extension.
• Refusal of extra work unless a legal exception applies.

The Individual Employment Contract cannot be suspended during the investigation, except as an effect of a lawfully adopted and communicated disciplinary dismissal decision.

 

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Holding an employee disciplinarily accountable is not the same as holding them patrimonially accountable, that is, obliging them to compensate you for the damages caused. Patrimonial liability does not include disciplinary fines, which are prohibited by law.