In what circumstances the employer can order the dismissal of an employee

Dismissal is a common process in employment relations and refers to the termination of an individual employment contract at the initiative of the employer. This can occur due to various factors of different natures. Employers must know how to justify their dismissal decision to the employee, and for this, it is necessary to have a precise understanding of the reasons that can lead to an employee’s dismissal.

According to Article 58 of the Labor Code, dismissal represents the termination of the individual employment contract at the employer’s initiative and can be ordered either for reasons related to the employee or for reasons unrelated to the employee.

Dismissal for Reasons Related to the Employee

According to the Labor Code, the employer may order the dismissal of an employee for reasons related to the employee in the following situations:

1. When the employee has committed a serious breach of work discipline

The employer may dismiss an employee if they have committed a serious breach or repeated breaches of work discipline or of the rules established by the individual employment contract, applicable collective labor contract, or internal regulations, as a disciplinary sanction. In this case, the employer can issue the dismissal decision only after complying with the provisions regarding disciplinary liability in the Labor Code.

Dismissal for committing a serious breach or repeated breaches of work discipline can only be ordered after the employer has conducted a prior disciplinary investigation, within the timeframes established by the Labor Code.

2. When the employee is under preventive arrest or house arrest

If the employee is under preventive arrest or house arrest for more than 30 days, in accordance with the Criminal Procedure Code, the employer may order their dismissal.

3. When physical and/or mental incapacity of the employee is established

If, by decision of the competent medical expertise authorities, the physical and/or mental incapacity of the employee is established, preventing them from fulfilling their responsibilities corresponding to their job.

In the case of dismissal due to the establishment of physical and/or mental incapacity by the competent medical expertise authorities, which prevents the employee from fulfilling their job responsibilities, the employee is entitled to compensation, as established in the applicable collective labor contract or individual employment contract, as appropriate.

4. When the employee does not meet professional requirements for their position

The employer has the right to dismiss an employee if they do not meet the professional requirements for their assigned position.

Dismissal for the reason of not meeting the professional requirements for the position can only occur after the prior evaluation of the employee, according to the evaluation procedure established by the applicable collective labor contract or, in the absence of such, by the internal regulations.

If dismissal occurs for one of the reasons mentioned in points 2, 3, and 4, the employer is obliged to issue the dismissal decision within 30 calendar days from the date the reason for dismissal was established.

The decision must be issued in writing and, under the penalty of absolute nullity, must be substantiated in fact and law, and must include details regarding the timeframe for contestation and the court where it can be challenged.

Dismissal for Reasons Unrelated to the Employee

Dismissal for reasons unrelated to the employee occurs when the termination of the individual employment contract is determined by the elimination of the position held by the employee, for one or more reasons unrelated to the employee. The elimination of the position must be effective and have a real and serious cause.

Dismissal for reasons unrelated to the employee can be either individual or collective.

Employees dismissed for reasons unrelated to them benefit from active measures to combat unemployment and may receive compensation as provided by law and the applicable collective labor contract.

In What Situations Is the Employer Obliged to Reassign the Dismissed Employee?

If dismissal is ordered due to physical/mental incapacity or because the employee does not meet professional requirements for their assigned position, as well as in cases where the individual employment contract has terminated by law due to the acceptance of the reinstatement request of a person wrongfully dismissed or for unfounded reasons, from the date of the final court decision on reinstatement, the employer is obliged to propose other vacant positions in the unit to the employee that are compatible with their professional training or, as applicable, with the working capacity determined by the occupational health physician.

If the employer does not have any vacant positions, they are obliged to seek support from the territorial employment agency for the redistribution of the employee, corresponding to the professional training and/or, as applicable, the working capacity established by the occupational health physician.

The employee has a period of 3 working days from the employer’s communication to express their written consent regarding the new job offered. If the employee does not express consent within the established timeframe, as well as after notifying the case to the territorial employment agency, the employer may proceed with the employee’s dismissal.

When Is It Prohibited to Dismiss an Employee?

The Labor Code of Romania also regulates aspects concerning the prohibition of dismissing an employee in certain situations. Thus, it is prohibited to permanently dismiss employees on the grounds of race, citizenship, ethnicity, color, language, religion, social origin, genetic traits, sex, sexual orientation, age, disability, chronic non-contagious disease, HIV infection, political preference, family situation or responsibility, union membership or activity, or belonging to a disadvantaged category.

Furthermore, it is prohibited to permanently dismiss employees for exercising, in accordance with the law, the right to strike and union rights.

There are also situations where temporary dismissal is prohibited, namely:

a) during the period of temporary incapacity for work, established by medical certificate according to the law;

b) during the suspension of activity due to the imposition of quarantine;

c) while the female employee is pregnant, provided the employer was aware of this before issuing the dismissal decision;

d) during maternity leave;

e) during leave for raising a child under 2 years old or, in the case of a child with a disability, until the age of 3;

f) during leave for caring for a sick child under 7 years old or, in the case of a child with a disability, for intercurrent conditions, until the age of 18;

g) while exercising an eligible function in a union body, except in cases where dismissal is ordered for serious disciplinary misconduct or for repeated disciplinary violations committed by that employee; [declared unconstitutional by Decision of the Constitutional Court no. 814/2015]

h) during annual leave.

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