According to article 58 of the Labor Code, the dismissal represents the termination of the individual employment agreement on the initiative of the employer and may be ordered for reasons relating to the employee’s person or for reasons not related to him.
As a result, more and more employers are firing their employees on the grounds of the economic difficulties created by the COVID-19 pandemic and, implicitly, by the state of emergency decreed.
In case of dismissal, there is no need for the employee’s agreement, being a cause of termination of the contract as a result of the unilateral will of one of the parties according to article 55 letter (c) of the Labor Code;
- Reasons relating to the employee’s person
- Serious misconduct or repeated misconduct from the rules of the workplace;
- A preventive arrest or home detention for more than 30 days;
- The physical or mental incapacity of the employee, who can no longer perform the duties corresponding to the hold position;
- The employee does not correspond professionally to the job.
- Reasons not related to the employee’s person
According to article 65 of the Labor Code, dismissal for reasons not related to the employee’s person is determined by elimination of the job from the chart organization of the company.
WHAT SHOULD THE EMPLOYER KNOW?
- ABOUT THE DISMISSAL DECISION:
- According to article 63 paragraph (3) of the Labor Code, must be issued in written form (ad validitatem condition). Verbal communication of the dismissal decision has no relevance, being considered non-communicated;
- Must meet, according to article 63 paragraph (3) of the Labor Code, certain conditions of form (to be motivated in fact and in law) and to be well-founded (based on real reasons);
- Must be communicated to the employee. Thus, according to article 77 of the Labor Code, the dismissal decision shall take effect from the date of communication to the employee.
Failure to comply with the conditions provided by the Labor Code may result in the dismissal decision being annulled in Court.
- ABOUT THE NOTICE PERIOD
According to article 75 paragraph (1) and (2) of the Labor Code, the minimum notice period is 20 working days, the exception being the persons who are in a trial period.
The dismissal decision issued without granting the notice period will determine the absolute nullity;
WHAT SHOULD THE EMPLOYEE KNOW?
- COMPENSATORY SALARIES
According to article 67 of the Labor Code, “employees dismissed for reasons not related to their person shall benefit from active measures to combat unemployment and can benefit from compensation under the conditions provided by law and the applicable collective agreement.”
- THE POSSIBILITY OF CONTESTING THE DISMISSAL DECISION
If the employee considers that the employer has ordered the termination of the individual employment contract improperly, he has the right to appeal the decision:
- within 30 days of the communication, in case of disciplinary sanction decisions, including dismissal for disciplinary reasons, according to article 268 paragraph (1) letter b) of the Labor Code;
- within 45 days of the communication, in the case of the other dismissal decisions, according to article 211 letter a) of the Law on Social Dialogue no. 62/2011.
- According to article 60 paragraph (1) letter. b), during the suspension of the activity as a result of the establishment of the quarantine, the dismissal of the employees cannot be ordered;
- If by the dismissal decision, the reasons not related to the employee’s person are invoked, respectively as a result of the termination of employment caused by a case of force majeure, it is important to note that article 65 paragraph (1) of the Labor Code stipulates that the termination of employment “must be effective and have a real and serious cause”. Thus, the mere invocation of force majeure in the dismissal decision is not sufficient in itself, the Labor Code not expressly providing for the possibility for the employer to unilaterally order the termination of the individual employment contract in case of force majeure. The existence of force majeure, the effects produced on the economic situation of the employer must be proved by the employer.
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