Denisapatrascu's Blog

1. 1. A short description of the overall labour law system in the country.

a)    How is your Labour Law structured? Do you have a comprehensive Labour Code or the equivalent (Labour Relations Act, etc) or is your Labour Law made up of several pieces of legislation?

In Romania we have from 2003 a New Labour Code who is structured in 13 titles:

–          General provisions;

–          Individual labour contract;

–          Working time;

–          Wage plan

–          Labour health and safety;

–          Vocational training;

–          Social dialogue;

–          Collective labour contracts;

–          Industrial conflicts;

–          Labour Inspectorate;

–          Legal liability;

–          Labour jurisdiction;

–          Transitory and final provisions.

b)   Details of the different pieces of labour legislation which exist in your country. Also, please indicate the date of their adoption and the reforms they have undergone since then.

In Romania we have detail legislation at the labour market. In chronologic order:

– Decree 92/1976 – The employment record book;

–     Romanian Constitution from 1991, modified 2003;

–    Law 130/1996, republished in 1999, modified in 2004 – Collective agreements;

–   Law 90/1996, republished in 2001- Labour protection;

–   Law 108/1999 republished in 2002- Labour Inspectorate;

–   Law 168/1999 – Labour conflicts;

–   Law 19/2000 – Public Pension’s system;

–   Law 356/2001- Employers organizations;

–   Law 53/2003 – Labour Code;

–   Law 54/2003 – Trade union’s law;

c)    Are individual employment relations and collective labour relations addressed in the same law or are they addressed in separate laws?

It is both. According of the provisions of the Labour Code it is regalement the individual employment contract and the collective agreements, but the special law for collective agreements is the Law 130/1996, republished.

d)    How is your labour law enforced? Do you have a system of Labour Courts, or labour litigation is heard by the ordinary tribunals?

In this moment we don’t have a specific provision at the court procedures and we use the Civil Procedure Code. It is a separate section in the same court for labour conflicts, social assurance. We have in plan to settle the Labour Court.

e)    To what extent has your labour law been drafted or revised under the influence of EC law?

Romanian labour legislation was drafted or revised under influence of EC law according to the EU Directive.

f)     To what extent have the social partners been involved in the elaboration and the revision of your labour law?

Every draft law is advised by ministry involved and Economic and Social Council (where are represents of the social partners), and if this give, the project can be transited at the Govern, and then to the Parliament.

1. 2. Contract of employment (general issues)

a)    Are the contracts of employment or the employment relationship legally defined in your national law? If they are, please quote the relevant legal definitions.

According to art. 10 at the Labour Code an individual labour contract is a contract based on which a natural entity, called employee, undertakes to perform work for and under the authority of an employer, who is a natural or legal entity, in return for remuneration, called wages.

Another articles from the same law established who are the parts at this contract:

In art.13 are established the employee: a natural entity shall be allowed to work after having turned 16 years of age. A legal entity can also conclude a labour contract, as an employee, after turning 15 years of age, based on his/her parents’ or legal representatives’ consent, for activities in accordance with his/her physical development, aptitudes and knowledge, unless this places under risk his/her health, development, and vocational training. Employment of persons under the age of 15 is prohibited.) Employment of persons placed under court interdiction is prohibited. Employment in difficult, harmful, or dangerous work places shall only take place after the person has turned 18 years of age; such work places shall be established in a Government decision.

In art. 14 are established the employer: for the purposes of this code, employer means a natural or legal entity who can employ, according to the law, labour force based on an individual labour contract. A legal entity can conclude individual labour contracts, as an employer, after having acquired that legal status. A natural entity can conclude individual labour contracts, as an employer, after having acquired the capacity to exercise.

b)    How is the contract of employment formed? Must it be in writing? Is the written form a condition for the contract’s validity?

According to art. 16 from the Labour Code an individual labour contract shall be concluded based on the parties’ consent, in written form, in Romanian. The employer has the obligation to conclude the individual labour contract in written form. If the individual labour contract has not been concluded in written form, the presumption is that it has been concluded for an indefinite term, and the parties can give proof of contract provisions and work performed through any other elements of proof.

The write form in our legislation it is just ad probationem no ad validitatem.

c)    Do you have a public service of employment which mediates in the hiring of workers? To what extent is it actually used? Do you have private employment agencies operating in your country? To what extent are they used?

According to art. 70 para.(3) from the Labour Code the employer shall notify the dismissal project to the territorial labour inspectorate and the territorial employment agency on the same date the notification was sent to the trade union or, as the case may be, to the employees’ representatives.

d)    Is probation regulated in your law? If it is, what is the probationary period in your country?

According to art. 31 para.(1) from the Labour Code to check the abilities of the employee, on the conclusion of the individual labour contract, a trial period of 30 calendar days at the most may be established for executive positions, and 90 calendar days at the most for management positions.

In art.83 from the same provision an employee hired under an individual labour contract for a definite term can be subjected to a trial period, which shall not exceed:

a) 5 working days, for a term of the individual labour contract less than 3 months;

b) 15 working days, for a term of the individual labour contract between 3 and 6 months;

c) 30 working days, for a term of the individual labour contract exceeding 6 months;

d) 45 working days, in the case of employees holding management positions, for a term of the individual labour contract exceeding 6 months.

According to art. 96 from the Labour Code in the temporary labour contract there can be set up a trial period for carrying out the assignment, the duration of which shall be fixed depending on the user’s request, but it shall not exceed:

a) two working days, if the temporary labour contract is concluded for a period shorter than or equal to a month;

b) three working days, if the temporary labour contract is concluded for a period between one and two months;

c) five working days, if the temporary labour contract is concluded for a period exceeding two months

e)    Which of the following modalities of the contract of employment are addressed by your law:

1. i.    Part-time employment (please indicate if part time workers are entitled to the same benefits prorata temporis than comparable full time workers)?

According to art. 101 para (1) from the Labour Code an employer can hire employees with a work schedule corresponding to a work load fraction of at least two hours a day, by means of individual labour contracts for an indefinite term or for a definite term, called part-time individual labour contracts.

In accordance to art. 103 from the Labour Code an employee employed under a part-time labour contract shall enjoy all the rights of full-time employees, under the terms stipulated by the law and the applicable collective labour contracts. The wage entitlements shall be granted proportional to the actual hours worked, in relation to the entitlements established for a normal work schedule. In the case of an employee who carries out his/her activity based on a part-time individual labour contract, the contribution period to the social insurance public system shall be proportional to the actual hours worked according to the law

1. ii.    Fixed-term contract of employment (will be discussed below, under 3: particular issues);
2. iii.    Contract for the performance of a specified work or service;

In Romanian legislation is not r established this type of contract.

1. iv.    Temporary work through the use of an intermediary (i.e. a temporary work agency) (will be discussed below, under 3: particular issues);
2. v.    Other.

In Romanian labour legislation is another type of employment contract:

According to the art. 105 para (1) from Labour Code homeworkers are those employees who carry out, at their home, the assignments typical of their positions.

According to the art. 106 from Labour Code an individual homework contract shall only be concluded in a written form and shall comprise, besides the elements stipulated under Article 17 (2), the following:

a) the express mention that the employee shall work at home;

b) the schedule during which the employer shall be entitled to check his employee’s activity, and the actual manner of making such a control;

c) the employer’s obligation to ensure transport, to and from the employee’s domicile, as the case may be, of the raw materials and materials, which he/she uses in his/her activity, as well as the finished products made by him/her.

f)     Has the use of the above modalities been recently eased? If it has been, please describe the main changes introduced in your law with such a purpose in sight, and explain what were the main reasons for such changes?

In 2004 it was recorded:

–  1.454.788 employment contracts by undetermined period full time;

–  162.355 employment contracts by undetermined period part time;

–    289.003 employment contracts fixed term period full time;

–    35.868 employment contracts by fixed term part time;

–    173 employment contracts at home by undetermined period  full time;

–    272 employment contracts at home by undetermined period  part time;

–    31 employment contracts at home by fixed term full time;

–    103 employment contracts at home by fixed term part time;

Some particular issues

a)    Fixed-term contract of employment (FT)

1. i.    What are the main cases of recourse to fixed-term contracts of employment?

Acordind to art.81 from Law 53/2003-Labour Code an individual labour contract for a definite term can only be concluded in the following instances:

a) replacement of an employee in the event his/her labour contract is  suspended, except when that employee participates in a strike;

b) a temporary increase in the employer’s activity;

c) seasonal activities;

d) if it is concluded based on lawful provisions made with a view to temporarily favouring certain categories of unemployed persons;

e) in other instances expressly stipulated by special laws.

1. ii.    Can you assess the actual use of fixed-term contracts of employment (if you have data available, please assess the weight of FT employment vis a vis the overall rate of salaried employment in your country)?

In 2004 at the national level was recorded:

– 289.003 employment contracts fixed term period full time;

– 35.868 employment contracts by fixed term part time;

– 31 employment contracts at home by fixed term full time;

– 103 employment contracts at home by fixed term part time;

1. iii.    Are women and men affected in the same way by the recourse to FT contracts?

We do not have this information.

1. iv.    What is the maximum duration of a FT contract; can it be renewed; if yes it can, how many times?

According to art. 82 Labour Code the individual labour contract for a definite term cannot be concluded for a period exceeding 18 months. If the individual labour contract for a definite term is concluded with a view to replacing an employee whose individual labour contract has been suspended, the term of the contract shall expire when the reasons having caused the suspension of the individual labour contract of the tenured employee have ceased to exist.

Another articole, art.80 para. 3 Labour Code established that an individual labour contract for a definite term can be extended even after the expiry of the initial term, based on the parties’ written consent, but only within the term stipulated under Article 82 and two consecutive times at the most.

In accordance to art. 84 para.(1) Labour Code on the expiry of the individual labour contract for a definite term, an employee shall be hired for that position under an individual labour contract for an indefinite term.

1. v.    What are the legal remedies when a FT contract of employment has been wrongfully used by an employer? Can in such cases a FT contract be deemed to be a contract of employment for unspecified duration?

According to provision art.16 para.(2) from Labour Code if the individual labour contract has not been concluded in written form, the presumption is that it has been concluded for an indefinite term, and the parties can give proof of contract provisions and work performed through any other elements of proof.

b)    Temporary Work

For temporary work it is understood a triangular arrangement whereby an  employer (a temporary work agency) hires a worker with a view to making him or her available to a third party (the user enterprise) which assigns his or her tasks and supervises the execution of these tasks[1].

Is temporary work regulated in your country? If it is, please describe the main features of such regulation, eg:

Work through a temporary labour agent are established to chapter VII – Section II from Labour Code (art.87-100) and in Govern Decision no. 938/2004 for conditions by organise and function and the procedure of autorsation temporary labour agent, amending by Govern Decision no.226/2005.

–   licensing of temporary work agencies, if required;

The authorisation of the temporary labour agency is made by Ministry of Labour, Social Solidarity and Family, respectavely teritorial directorates for labour, social solidaritaty and family, which have the adress of the agency, in accordance to provision at the art.4(1) G.D. no. 938/2004.

–   cases or recourse to temporary work; cases where recourse to temporary work is forbidden, if any;

In accordance to provisions art. 88 from Labour Code, an user can call on the temporary labour agents only for carrying out a precise and temporary duty, called temporary work assignment, and only in the following instances:

a) to replace an employee whose individual labour contract has been suspended, for the duration of the suspension;

b) to perform some seasonal activities;

c) to perform some specialised or occasional activities.

–   maximum duration of temporary work missions;

In accordance to provision of art. 89 from Labour Code a temporary work assignment shall be established for a period which cannot exceed 12 months. The duration of a temporary work assignment can be extended only once for a period which, added to the initial duration of the assignment, cannot exceed 18 months. The terms under which the duration of a temporary work assignment can be extended are stipulated in the temporary labour contract or can make the subject of a rider to that contract.

–   wage determination and other conditions of work of temporary workers: are they entitled to the same rates and other conditions of work than regular workers who perform comparable tasks in the user enterprise?; are they entitled to use the social welfare services of the user enterprise like the latter’s regular workers?

–   liability of the user enterprise in case of the temporary work agency’s failing to meet its obligations vis a vis the temporary worker (for example in case of insolvency of the temporary work agency).

In accordance to provisions art.95 from Labour Code throughout the duration of the assignment, the temporary employee shall benefit from the wages paid by the temporary labour agent. The wages received by the temporary employee for each assignment shall not be lower than the wages received by the user’s employee who performs the same work or one similar to the one of the temporary employee. If the user has no such employee, the wages received by the temporary employee shall be established by considering the wages of a person employed under an individual labour contract and who performs the same work or a similar one, as stipulated in the collective labour contract applicable to the user. The temporary labour agent shall be the one who deducts and transfers all the contributions and taxes due by the temporary employee to state budgets and pays for him all the contributions due according to the law. If, within 15 calendar days from the date the obligations concerning the payment of the wages and those concerning contributions and taxes have fallen due and exigible, and the temporary labour agent does not execute them, they shall be paid by the user, based on the request of the temporary employee. The user who has paid the amounts due according to paragraph (5) is subrogated, for the amounts paid in the rights of the temporary employee against the temporary labour agent.

1. ii.            Is temporary work actually used in your country? If it is, please inform how temporary work is organized (e.g. temporary work agencies which operate in you country, who are the main users of temporary work, how many workers regularly perform temporary work etc)?

In the present time this Govern Decision has just entered into force, so, some economic agents requested the authorization from territorial directorate.

1. iii.            What remedies are provided for under your national law in case of irregular use of temporary work by a user enterprise?

According to art.19  para.(1) Labour Code the autorization of functio at the temporary labour agency are redrawed by the Ministry of Labour, Social Solidarity and Family, respectevely by the teritorial directorate, in case of the motivated request of the labour inspectors or, if necesary another control bodies.

c)    Work or services outside the scope of an employment relationship

i.            What are, in your country, the most frequent forms of recourse to “civil” contracts rather than to contracts of employment (eg transportation, delivery, maintenance, sales by so-called independent vendors, telework, provision of certain services, other)? Is this practice widespread or it is rather exceptional?

In accodance to the provisions of  art. 101 para (1) and (3) from Labour Code, an employer can hire employees with a work schedule corresponding to a work load fraction of at least two hours a day, by means of individual labour contracts for an indefinite term or for a definite term, called part-time individual labour contracts. The weekly work period for an employee employed under a part-time individual labour contract shall be lower than that of a comparable full-time employee, but not less than 10 hours.

When an employee works less then 2 hours/day, 10 hours/week it does not represent an employment contract, and can be settled by the civil contract.

1. ii.            What is the position of your law in respect to the use of civil law contracts rather than labour law contracts in view of the execution of work or the provision of services by a worker under actual conditions of dependency vis a vis his or her employer?

In a civil contract the parts have equal rights and obligations, but in a labour contract the employee is subordinated to the employer.

1. iii.            Does your law have clear criteria to draw the boundaries between dependent and independent employment? Do you have jurisprudence on this issue?

In the special law settling the liberal professions there are established the rights and the obligations having in regard the specific of the activity (medicine, lawyers, architects, notary).

1. iv.            What remedies exist in your law in case of fraudulent use of civil or commercial contracts to the detriment of the workers’ rights?

In this case the common law is the civil code providing rights, specific obligations and sanctions.

d)    Termination of the contract of employment

i.            What are the major grounds for termination of a contract of employment in your national law?

1. In the case of individual redundancies the grounds are (art.55 Labour Code):

a) de jure;

b) based on the parties’ consent, on the date agreed upon;

c) as a result of the unilateral will of one of the parties, in the cases and under the terms limitedly stipulated by the law.

The individual labour contract is de jure terminated (art.56 Labour Code):

a) on the date of the death of the employee or employer, if he/she is a natural entity;

b) on the date a final judgment is delivered, declaring the death or placing under interdiction of the employee or of the employer, if he/she is a natural entity, and if this causes the business liquidation;

c) as a result of the dissolution of the employer, if this is a legal entity, from the date the legal entity ceases to exist;

d) on the date the standard age conditions and the minimum period of contribution for retirement are cumulatively met, or, as the case may be, on the date the decision of retirement for age limit or disability of the employee is communicated, according to the law;

e) as a result of finding the absolute nullity of the individual labour contract, from the date the nullity was found based on the parties’ consent, or a final judgment;

f) as a result of the admittance of the petition for reinstating in the position occupied by the employee a person dismissed unlawfully or for ill-founded grounds, from the date the final judgment for reinstating is delivered;

g) as a result of a criminal sentence to be served on the job, from the date of issuance of the serving warrant;

h) from the date of withdrawal, by the competent authorities or bodies, of the approvals, authorisations, or certifications necessary for exercising one’s profession;

i) as a result of the interdiction to exercise a profession or an office, as a safety measure or complementary punishment, from the date the final judgment ordering the interdiction was delivered;

j) on the expiry of the deadline of the individual labour contract concluded for a definite term;

k) from the date of withdrawal of the parents’ or legal representatives’ consent, for employees whose ages range between 15 and 16 years.

The employer can order the dismissal for reasons related to the employee’s person under the following circumstances (art.61 Labour Code):

a) if the employee has perpetrated a serious infraction or repeated infractions of the work discipline regulations or those set by the individual labour contract, the applicable collective labour contract, or the company’s rules and regulations, as a disciplinary sanction;

b) if the employee is taken into preventive custody for a period exceeding 60 days, under the rules of criminal procedure;

c) if, following a decision of the competent medical investigation authorities, it is established the physical unfitness and/or mental incapacity of the employee, which prevents the latter from accomplishing the duties related to his/her work place;

d) if the employee is not professionally fit for his/her job.

The dismissal for reasons not related to the employee’s person shall represent the termination of the individual labour contract, caused by the suppression of that employee’s position due to economic difficulties, technological changes, or activity reorganization (art.65 para.1 Labour Code).

Resignation means the unilateral act of will of the employee who, by means of a written notification, shall inform the employer about the termination of the individual labour contract, after the term of notice has elapsed (art.79 para.1 Labour Code).

2. Collective dismissal means the dismissal, within 30 calendar days, ordered for one or more reasons of those stipulated under Article 65 (1), of (art.68 Labour Code):

a) at least 5 employees, if the employer who is dismissing them has more than 20 employees and less than 100 employees;

b) at least 10% of the employees, if the employer who is dismissing them has at least 100 employees but less than 300 employees;

c) at least 30 employees, if the employer who is dismissing them has at least 300 employees.

1. ii.            Does your national law specify the grounds which do not constitute a good reason for the termination of a contract of employment?

It shall be prohibited to dismiss employees (art. 59 Labour Code):

a) based on criteria such as gender, sexual orientation, genetic characteristics, age, national origin, race, colour, ethnic origin, religion, political option, social origin, disability, family status or responsibility, trade union membership or activity;

b) for the exercise, under the terms of the law, of their right to strike and trade union rights.

Employees’ dismissal shall not be ordered (art. 60 Labour Code):

a) for the duration of the temporary industrial disablement, as established in a medical certificate according to the law;

b) for the duration of the quarantine leave;

c) for the duration an employed woman is pregnant, if the employer learnt about this fact prior to the issuance of the dismissal decision;

d) for the duration of the maternity leave;

e) for the duration of the leave for raising a child up to the age of 2, or, in case of a disabled child, up to the age of 3;

f) leave for looking after a sick child up to the age of 7 or, in case of a disabled child, for intercurrent diseases, up to the age of 18;

g) for the duration of the military service;

h) for the duration of the exercise of an elected position in a trade union body, except when the dismissal is ordered for a serious infraction of discipline or for repeated infractions of discipline perpetrated by that employee;

i) for the duration of the leave.

The provisions of paragraph (1) shall not apply in cases of dismissal for reasons due to the employer’s judicial reorganisation or bankruptcy, according to the law.

1. iii.            Is the employer obliged to set out in writing the reasons why the employee is to be terminated?

The dismissal decision shall be communicated to the employee in writing and shall compulsorily contain (art.74 Labour Code):

a) the reasons for the dismissal;

b) the term of notice;

c) the criteria for establishing the priority sequence, according to Article 70 (2) d);

d) the list of all available positions in the company and the period in which the employees must choose for taking a vacant position, under Article 64. If, during the notice period, the individual labour contract is suspended, the term of notice shall be suspended accordingly.

1. iv.            Does your law provide for a procedure to be observed when an employer intends to terminate the contract of employment of an employee? If it does, please briefly describe the procedure. What happens if this procedure is by-passed by the employer?

The dismissal ordered in non-compliance with the procedure stipulated by the law shall be rendered void (art.76 Labour Code). In the event of an industrial conflict, the employer cannot put forward in court other de facto or de jure reasons than the ones stated in the dismissal decision (art.77 Labour Code). If the dismissal was not well-grounded or was unfair, the court shall rule its cancellation and force the employer to pay an indemnity equal to the indexed, increased or updated wages and the other entitlements the employee would have otherwise benefited from. At the employee’s request, the court which ruled the cancellation of the dismissal shall restore the parties to their status prior to the issuance of the dismissal document (art.77 Labour Code).

1. v.            Do you have a special procedure which applies when the employer contemplates collective dismissals?

As far as collective dismissals are concerned, the employer has the following obligations (art.69 Labour Code):

a) to draw up a plan of social measures or of another type stipulated by the law or the applicable collective labour contracts, after having consulted the trade union or the employees representatives;

b) to propose vocational training programmes to the employees;

c) to place at the disposal of the trade union which has members in that company or, as the case may be, to the employees’ representatives all the relevant information about the collective dismissal, with a view to receiving proposals from them;

d) with a view to reaching a common point of view, to start in due time consultations with the trade union or, as the case may be, the employees’ representatives, concerning the methods and means for avoiding collective dismissals or diminishing the number of employees affected and mitigating the consequences.

The employer shall notify in writing the trade union or, as the case may be, the employees’ representatives of his intent of collective dismissal, at least 45 calendar days before the issuance of the dismissal decisions. The notification of the collective dismissal intent shall take the form of a collective dismissal project, which shall comprise:

a) the total number and categories of employees;

b) the reasons for the dismissal;

c) the number and categories of employees to be affected by the dismissal;

d) the criteria envisaged, according to the law and/or collective labour contracts, for establishing the dismissal priority sequence;

e) the steps considered for limiting the number of dismissals;

f) the steps for mitigating the consequences of the dismissal and the compensations to be granted to the employees dismissed, according to the provisions of the law and the applicable collective labour contract;

g) the date on which or the period during which the dismissals shall take place;

h) the period in which the trade union or, as the case may be, the employees’ representatives can make proposals for avoiding dismissals or diminishing the number of employees dismissed. The employer shall notify the dismissal project to the territorial labour inspectorate and the territorial employment agency on the same date the notification was sent to the trade union or, as the case may be, to the employees’ representatives (art.70 Labour Code).

1. vi.            Must the employer always give notice of his/her intention of terminating the contract of employment? In which cases he/she does not need to give notice? What is, in your country, the length of the statutory notice period?

The persons dismissed based on Article 61 c) and d), and Articles 65 and 66 shall benefit from the right to a notice which cannot be less than 15 working days (art.73 Labour Code).

1. vii.            Is the worker entitled to severance pay in case his or her contract of employment is terminated by the employer? How is severance pay calculated? In which cases can severance pay be denied?

In case of redundancies for the reasons not related to the employee’s person the employer shall pay a 50% compensation from the monthly wage, added to the current rights wage (art.76 para 1 national collective agreements).

1. viii.            How can a worker challenge his or her dismissal on the ground it is unjustified or unfair?

The employee can challenge the sanction decision before the competent courts of law within 30 calendar days from the date of notification (art.268 para 5 Labour Code).

1. ix.            Does the law provide for a minimum period of service for an employee to be entitled to bring a complaint for unfair dismissal?
2. x.            Does the law provide for a deadline beyond which an employee can no longer bring a complaint for unfair dismissal?
3. xi.            What is the competent body before which a worker can bring a complaint for unfair dismissal (eg. an ordinary court, a labour court, an ad-hoc panel, other)?

The employee can challenge the sanction decision before the competent courts of law within 30 calendar days from the date of notification (art.268 para. 5 Labour Code). The competent court to analyze the complaint of unfair dismissal is ordinary tribunal at labour conflict section.

1. xii.            Does your law provide for pre-trial procedures such as conciliation before a tribunal can heard an unfair dismissal complaint?

Negative, but the judge is obliged to try to solution the complain from amiable way, at the first term of judgment.

1. xiii.            Is the employee obliged to provide the evidence that he or she has been unfairly dismissed or it is up to the employer to demonstrate that the dismissal was justified?

The employer shall be responsible for providing the evidence in industrial conflicts, being obliged to submit evidence in his defence by the first day of trial (art.287 Labour Code).

1. xiv.            Which of the following remedies are available in case of unfair dismissal?

–        Reinstatement: Does it exist as a regular remedy in your national law? If it does, when it is ordered? Is it mandatory or the employer can refuse an order of reinstatement? Can the tribunal order compensation instead of reinstatement, and if it can, in which cases it more often orders compensation rather than reinstatement?

–        Compensation[2]; If the tribunal can order compensation, how is it calculated?

1. xv.            Constructive dismissal. Can an employee terminate a contract of employment by reason of the employer’s conduct (e.g. the employer’s misconduct vis a vis the employee, the employer’s breach of his/her obligations arising out of the contract of employment, the employer’s unilateral change of fundamental terms and conditions of the contract of employment, the imposition of a disciplinary penalty on frivolous reasons or of a penalty which is disproportionate with the employee’s fault)? If he/she can, can he or she bring a complaint before a tribunal? Can the tribunal order the employer to pay compensation to the worker if it holds that the employee had good reasons to terminate the contract of employment because of the employer’s conduct? How is compensation calculated in such case?

In accordance to Civil Procedure Code the request to analyze the dismissal must contain the employee written solicitation to be reinstatement or when this is not possible employer to pay the compensation.

According to art. 83 from Law 168/1999 the failure to execute a final judgment on the payment of the wages within 15 days calculated beginning with the date of the application for execution addressed to the unit by the party concerned shall constitute an offence and shall be punished with imprisonment from 3 months to 6 months or with fine.

The failure to execute a final judgment on the reinstating in work of an employee shall constitute an offence and shall be punished with imprisonment from 6 months to 1 year or with fine (art.84).

Denisa Pătrașcu , Final Raport of the third meeting of labour legislation expert’s network at International Labour Office, pag.22-23, Constanţa, România, 07-08.07.2005

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[1] Please, refer to the Private Employment Agencies Convention, 1997 (No. 181), ratified inter alia by Albania, Bulgaria and Moldova, and its accompanying Recommendation (No. 188) ; text of both instruments available online, in the ILOLEX Database : http://www.ilo.org/ilolex/english/index.htm

[2] Typically, compensation can be ordered when the tribunal holds that a worker  has been unfairly dismissed but it considers that reinstatement is not possible or is not practical, or the worker does not wish to reinstated in his or her previous employment. By contrast, contrast severance pay is due when the employer has a valid reason to terminate the contract of employment on grounds other than the employee’s fault.

Filed under: Analize juridice | Tagged: Labour Code, labour contract, labour law, romanian legislation |