Labour Law Newsletter No. 3/2012

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Legislation

News on the public non-working holidays provided by the Labor Code

Law no. 147/2012 for the amendment of Article 139 (1) of the 53/2003 – Labor Code has been published within the Official Gazette no. 509 dated July 24th 2012.

According to the new legal provisions, November 30th (Saint Andrew the First-called, Romania’s protector) was declared public non-working holiday.

News concerning the coordinators in health and safety matters

Ministry Order no.2712/2012 for the amendment of the Regulation on the specific training of the health and safety coordinators during projects and/or carrying out the relevant work on temporary or mobile work sites, approved by Order no.242/2007 issued by the Minister of Labor, Social Solidarity and Family has been published within the Official Gazette no. 734 dated October 31st 2012.

The new provisions set forth a program in view of updating the specific training required for health and safety coordinators during project s performed on temporary or mobile working sites.

Such program is designed for those who have graduated the specific training required to occupy the position of health and safety coordinator and has a duration of minimum 40 hours.

News concerning the indexed nominal value of a meal ticket

Ministry Order no. 2722/2012 issued by the Minister of Labor, Family and Social Protection for the setting forth of the indexed nominal value of a meal ticket corresponding to the second semester of 2012 has been published within the Official Gazette no. 736 dated October 31st 2012.

The order provides that, starting November, for the second semester of 2012, the nominal value of a meal ticket is of RON 9.

News concerning the indexed monthly amount given as childcare vouchers

Ministry Order no. 2723/2012 issued by the Minister of Labor, Family and Social Protection for the setting forth of the indexed monthly amount granted as childcare vouchers for the second Semester of 2012 has been published within the Official Gazette no. 736 dated October 31st 2012.

The order provides that, starting November, for the second semester of 2012, the monthly amount granted as childcare voucher is of RON 400.

News concerning the Labor Code

A legislative initiative filed by the citizens regarding a bill aimed to amend the Romanian Labor Code has been published within the Official Gazette no. 773 dated November 16th 2012.

Up to this point, the initiative has received a favourable notice (with several observations) from the Romanian Legislative Council.

The proposals include the following amendments:

  • in addition to the elements already set forth by art. 17 of the Labour Code, the employer has the obligation to inform the employee prior to the conclusion of the employment agreement also in respect to (i) the modalities for verifying the employee’s professional and personal skills as well as (ii) the employee’s performance targets;
  • the employer may unilaterally terminate the non-competition clause any time during its applicability; to the extent the parties agree on the employee’s obligation not to compete his/her employer during the employment agreement, the employer has the obligation to grant the employee with an allowance amounting at least 25% of the latter’s base salary;
  • the confidentiality clause may produce its effects also after the termination of the employment agreement, but only for certain information and for a determined period of time;
  • the performance target clause is expressly regulated as a specific clause and may be applied if the employee obtains results that show an improvement of the employer’s activity;
  • delegation may be extended with maximum 60 days inside a period of 12 months;
  • secondment may be extended only for a period of maximum 6 months; after the termination of the secondment, it is prohibited to have a new secondment during a period of at least 3 months;
  • the fixed-term employment agreement may be concluded for a period of maximum 5 years; between same parties, there can be concluded maximum 5 such agreements inside the 5 years period of time; for the same job position, there can be maximum 5 different employees during the respective period;
  • teleworking is introduced as a form of work outside the employers headquarters, using informatics systems; the teleemployee establishes by him(her)self the working schedule, but the employer has the right to verify the employee’s activity;
  • overtime shall be compensated with paid time off during the next 30 days as well as with an increment of at least 50% of the employee’s base salary; if time off cannot be granted as mentioned, the increment will be of at least 100% of the employee’s base salary;
  • employees may be prohibited to terminate the employment agreement (resign) following a professional training program upon the employer’s initiative only if the duration of such training was at least 1 year;
  • the employer may be obliged to pay damages only for the material prejudice caused to the employee during or in connection with his/her work;
  • a collective labor agreement may be also concluded at national level, only for certain categories of rights and activities set forth by the special law;
  • during the probation period, the employment agreement may be terminated by parties’ agreement as well as by employee’s written notification in this respect. To the extent the employee is found professionally inadequate during such period, the employer may terminate the employment agreement only after following a dismissal procedure for poor performance, without having however the obligation to grant the dismissed employee a vacant position within the employer, if case;
  • the employment agreement will not be terminated by law when the conditions related to age limit retirement will be met, but when the retirement decision shall be communicated;
  • the employer having implemented collective dismissals is forbidden to resume the positions of the dismissed employees and conclude employment agreements in this respect for a period of 9 months starting the date of dismissal.

Case-law

News concerning the employee’s disciplinary liability

Ruling no. 16/2012 of the Supreme Court of Justice on the referral in the interest of the law regarding the starting date of the 30 calendar day deadline for applying a disciplinary sanction has been published within the Official Gazette no. 817 as of 5th of December 2012.

The above mentioned ruling was adopted by the Supreme Court in view of rendering unitary the case-law divergences regarding the establishment of the moment as of which the 30 calendar day deadline starts running in respect with the employer’s obligation to issue a disciplinary decision.

In this respect, after analyzing the opinions presented by the Ombudsman and by the General Prosecutor, the Supreme Court rules that the 30 calendar day deadline starts from the date when the final report of the preliminary disciplinary investigation is registered within the employer’s records.

According to the arguments presented to the Supreme Court by the Ombudsman, the 30 day deadline should be calculated from the date when the employer’s representative acknowledged the employee’s deed by means of a written document or after acknowledging it directly, any other interpretation being subject to a potential abuse from the employer’s side, who could postpone in bad faith the sanctioning decision and maintain a state of uncertainty regarding the employee.

On the other side, the General Prosecutor argued that the 30 day deadline starts running as of the date when the employer’s representative (having the competence to apply disciplinary sanctions) acknowledged the disciplinary investigation report drafted by the disciplinary investigation commission, considering that only at this point it can be established with certainty that the deed committed by the employee represents disciplinary misconduct. Another interpretation could not be accepted because it would lead to the employer’s obligation to perform the preliminary investigation and to apply the disciplinary sanction within the 30 day deadline, while the law does not provide for a specific duration of the preliminary investigation, the only condition being that the entire procedure to be finalized within 6 months from the date the deed was committed.

In the Supreme Court’s view, the opinion of the General Prosecutor is the correct one, given that it can be established with certainty if the investigated deed represents misconduct only once the preliminary investigation is finalized through a report. In this respect, the Court ruled that the possibility of an abusive extension of the preliminary investigation by the employer cannot be admitted as such interpretation would deprive of legal effects both the good faith presumption regulated by the entire Romanian law system as well as the 6 months legal deadline within which the entire disciplinary procedure must be performed.

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