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Disciplinary dismissal Date: 2009-03-18

Dismissal due to disciplinary reasons

The termination of an employment agreement due to reasons dependent to the employee represents a complicated process, which requests the attentive performance of a series of steps from side of the employer.

This is also the case of the dismissal due to disciplinary misconduct. The disciplinary misconduct represents a deed of the employee performed by fault of the employee. In order to justify the dismissal of the employee, the disciplinary misconduct must have a certain gravity or to be repeated by the employee. In taking the decision to dismiss the employee, there are also to be considered the consequences of the disciplinary misconduct, the conditions in which the disciplinary misconduct has been performed and the general behavior of the employee within his employment relation.

In order to be considered a disciplinary misconduct, a deed of the employee must be related to the provisions of the individual employment agreement or as the case may be, of the internal regulations, which have been violated. In this respect some certain proofs with respect to the disciplinary misconduct of the employee are to be secured by the employer.

The employer can dismiss the employee only within 30 calendar days from the moment at which he has known that the employee has performed a disciplinary misconduct, but no later than 6 months after the performance of the disciplinary misconduct by the employee. No notice term is to be granted to the employee.

The employer has the obligation to perform a disciplinary investigation prior to dismissal of the employee due to disciplinary reasons. In case that the employer fails to perform such prior investigation, the dismissal of the employee is void. In this scope the employer will appoint a commission. The law provides expression provisions regarding the composition of this commission.

The employee will be notified in written in a certain term provided bythe collective labour agreement concluded on national level withrespect to the performance of the investigation.

In case the employee fails to appear to the meeting, without justifying his absence, the employer has the right to dispose the sanctioning without conducting the prior investigation.

During the disciplinary investigation, the employee has the right to defend himself, to give all the explanations he considers necessary and to provide proofs in this respect. The discussions held by the commission shall be provided in a special register of minutes.

The disciplinary investigation can have as result the issuance of the dismissal decision by the employer, in case the gravity of the disciplinary misconduct or the repeated actions of the employee justifies / justify this measure.

The dismissal decision must stipulate a number of provisions regulated mandatory by the Labour Code, such as the presentation of the disciplinary violation, the legal ground on the basis of which the disciplinary sanction has been applied, the term and the competent law court at which the disciplinary sanction can be contested by the employee.

The dismissal decision will be communicated to the employee and produces effects from its communication. The decision must be also registered with the competent Territorial Inspectorate of Labour.

In case of a contestation of the dismissal decision by the employee, the process will be conducted on the basis of the legal grounds and the deeds mentioned in the dismissal decision. No other facts or legal grounds are accepted before the court in order to justify the dismissal. Due to this fact, the dismissal decision must be thoroughly prepared by the employer.

Irina Stanica, Attorney-at-Law

S.P.R.L. Radnóczy & Menzer NÖRR STIEFENHOFER LUTZ

Attorneys – Tax Advisers – Auditors

28C, General Constantin Budisteanu Str., RO-010773 Bucharest

Tel.: 0040 21 312 58 88

Fax: 0040 21 312 58 89

E-mail: nslbuc@noerr.ro

Web: www.noerr.com