Terminations Report - Romania - en

Termination of Employment Relationships:
Legal situation in Romania
Luminiţa Dima
Professor (Lecturer) of Labour Law and Social Security
Law Faculty of Bucharest University
August 2006
Contents
I. Sources of law
(1) Constitutional provisions on the right to work
(2) International agreements and conventions
(3) Sources of law and their hierarchy
(4) Role of judge-made law and custom
II. Scope of the rules governing the termination of an employment relationships, special
arrangements
(1) Ways of terminating an employment relationship
(2) Exceptions or specific requirements
III. Termination of employment relationship by mutual agreement of the parties

(1) Evolution of legislation.
(2) Substantive conditions
(3) Procedural requirements
(4) Effects of the agreement
(5) Vitiating factors, remedies
(6) Penalties
(7) Collective agreements
(8) Relations to other forms of termination
IV. Termination of employment relationship otherwise than at the wish of the parties – de
jure termination of the individual labour contract
(1) Evolution of legislation
(2) Cases/grounds of de jure termination
2.1. Death of employee or death of employer, if he/she is a natural person
2.2. Declaring the death or placing under interdiction of the employee or of the employer, if
he/she is a natural person, by final judgement of a law court
2.3. Dissolution of the employer who is a legal entity
2.4. Communication of employee’s retirement decision
2.5. Acknowledgement of the absolute nullity of the individual labour contract
2.6. Reinstatement in the position occupied by the employee of the person who was previously
dismissed from the same position unlawfully or for ill-founded grounds
2.7. The employee is sentenced to execute a custodial penalty
2.8. Withdrawal of the approvals, authorisations, or certifications necessary for exercising one's
profession
2.9. Interdiction to exercise a profession or to perform a job
2.10. Expiry of the duration of the individual labour contract concluded for a fixed term
2.11. Withdrawal of the parents’ or legal representatives’ consent
(4) Effects of the existence of a ground of de jure termination of employment relationship
(5) Remedies
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(6) Penalties
V. Termination of employment relationship by employer’s initiative - dismissal
1. Evolution of legislation
2. Overview of the legislation in force
3. Prohibition of employee’s dismissal
4. Dismissal on disciplinary grounds
(3) Effects of dismissal
(4) Remedies
(5) Suspension of the effects of the dismissal
(6) Restoration of employment
(7) Penalties
5. Dismissal for other reasons related to the employee’s person

(4) Remedies
(7) Penalties
6. Dismissal for reasons not related to the employee’s person

(3) Specific requirements for collective dismissals
(5) Remedies
(8) Administrative or criminal penalties
(10) Special arrangements
VI. Termination of employment relationship by employee’s initiative - resignation

(3) Desertion of the post
(5) Effects of the resignation
(6) Remedies
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(7) Compensation to the employer

(8) “Contrived” resignations
(9) Resignation for proper cause
VII. General questions relating to all forms of termination of employment relationships

(1) Non-competition agreements
(2) Agreements to the effect that the employee will not terminate the contract during a certain
period
(3) The issuing of a reference
(4) Full and final settlement
ANNEX – Termination of the employment relationships during the probationary periods
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I. Sources of law
(1) Constitutional provisions on the right to work

Article 41 of the Constitution of Romania1 stipulates the right to work and the principle of social
protection of labour.
The constitutional provision guarantees the freedom of work stating that the right to work shall
not be restricted and that everyone has a free choice of his/her profession, trade or occupation, as
well as workplace. According to this provision, all the employees have the right to measures of
social protection.
(2) International agreements and conventions

From among the international conventions and regulations adopted in the area of termination of
the employment relationships, Romania ratified ILO Convention no. 135/1971 concerning
protection and facilities to be afforded to the workers’ representatives in the undertaking by
Decree no. 83/1975 of the State Council2.
Romania also ratified the revised European Social Charter by Law no. 74/19993.
(3) Sources of law and their hierarchy

In 1989, the year of the Romanian communist regime’s fall, the labour legislation in force was
based on the principles of the centralized economy and socialist ideology.
However, although the Romanian society and economy felt the necessity of a new labour
legislation, the Labour Code adopted in 1972 survived until 2003. Between 1990 and 2003
Labour Code’s provisions were modified mainly by means of adoption of a very consistent
supplementary legislation (e.g. law on labour collective agreements, law on trade unions, law on
labour conflicts, law on collective redundancies, etc.). The legislation adopted during this period
did not substantially affect the regulations concerning individual termination of employment
relationships.
At present, the general legal framework for termination of employment relationships is

established in Romania mainly by the provisions of the new Labour Code (“Codul muncii”).
The Romanian Labour Code in force was adopted in 2003 (Law no. 53/20034), following an
elaboration process of several years. The adoption of the Labour Code represents a fundamental
part of the process of approximating Romania’s labour legislation in-line with European
legislation. The Labour Code provides detailed regulations concerning all the modalities of
employment relationships termination: mutual agreement, individual and collective dismissals,
resignation, as well as termination by the effect of the law (de jure).
Following Romania’s entrance into a programme of reforms of the institutional and regulatory
frameworks with a view to consolidate the functioning of a market economy through continued
development of the private sector, promotion of a business environment, increasing flexibility of
the labour market with a view to increase the competitiveness of the Romanian economy and to
stimulate economic growth and employment, the Labour Code was recently amended
(Government Emergency Ordinance no. 65 of July 2005 approved by Law no. 371 of December
1
The Constitution of Romania of 1991 was amended and completed by the Law no. 429/2003 on the revision of the
Constitution of Romania and, subsequently, republished in the Official Bulletin of Romania no. 767 of 31st of
October 2003.
2
Decree no. 83/1975 was published in the Official Bulletin of Romania no. 86 of 2nd of August 1975.
3
Law no. 74/1999 was published in the Official Bulletin of Romania no. 193 of 4th of May 1999.
4
Law no. 53/2003 was published in the Official Bulletin of Romania no. 72/2003
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20055). The amendment of the Labour Code affected the provisions concerning the termination
of employment relationships such provisions being considered as very important for the labour
market flexibility.
The recent amendment of the Labour Code represents from the Romanian Government point of
view the first step of the envisaged amendments of the labour legislation. Proposals elaborated
by different stakeholders (employers, lawyers, judges, etc.) in order to improve and flexibilize
the legal provisions concerning the termination of employment relationships constituted subject
of discussion between the social partners and could be taken into account within the process of
elaboration of the future amendments6.
For some categories of employees there have been adopted specific laws: e.g. Statute of civil
servants (Law no. 188/1999), Statute of teachers (Law 128/1997), Statute of company’s legal
advisers (Law no. 514/2003), Statute of the employees of the transportation companies (Decree
no. 360/1976), Statute of the employees of the post offices and telecommunication companies
(Decree no. 361/1976), Statute of the magistrate’s profession (Law no. 303/2004). Such laws
stipulate only few rules derogating from the general provisions stated within the Labour Code
concerning the termination of employment relationships.
Labour collective agreements also provide rules in the area of employment relationships’
termination. Such agreements may be concluded at the level of the employer, group of employers
and branch of activity. The clauses of the labour collective agreements grant to the employees a
wider protection that the protection provided by the labour legislation. A very important aspect
of the labour collective agreements concluded under the Romanian legislation at the national
level and branch level is that such agreements have universally binding character7.
Rules on termination of employment relationships may also be provided by the company’s

internal regulations and individual labour contracts. Such rules must comply with the
provisions of the legislation in force and clauses of applicable labour collective agreements.
(4) Role of judge-made law and custom
5
Law no. 371/2005 approving the Governmental Emergency Ordinance no. 65/2005 on the amendment of Law no.
53/2003 – Labour Code was published in the Official Bulletin of Romania no. 1147 of 19th of December 2005.
6
A new proposal of amendment of the Labour Code was published on 31st of July 2006 on the website of the
Romanian Ministry of Labour, Social Solidarity and Family. The amendment of the Labour Code has been
appreciated as being necessary for the removal of the deficiencies mentioned within the May 2006 Monitoring
Report elaborated by the European Commission, in view of the accomplishment of the commitments overtaken by
Romania within the process of accession negotiations concerning Chapter 13 “Social policy and employment”, in
order of approaching the national legislation to the “acquis communautaire”. In the area of termination of
employment relationships the proposed amendment refers only to the notion and procedure of collective
redundancies – see infra footnotes at point V.6.(3).
7
According to article 241 paragraph (1) of the Romanian Labour Code, „The clauses of the collective labour
contracts shall cause effects as follows:
a) for all employer's employees, in the case of the collective labour contracts concluded at such level;
b) for all employees hired by employers who belong to the group of employers for which the collective labour
contract has been concluded at this level;
c) for all employees hired by all the employers in the branch of activity for which the collective labour contract has
been concluded at this level;
d) for all employees hired by all the employers in the country, in the case of the collective labour contract at a
national level.
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Jurisprudence plays a role only in the interpretation of the legislation. However, in case during a
trial a judge suspects that a specific legal provision breaches the constitutional provisions he may
refer the matter to the Constitutional Court. The decision by which the Constitutional Court
declares such legal provision as being unconstitutional has erga omnes effects.
The custom plays no role in the area of labour relationships.
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II. Scope of the rules governing the termination of an employment relationships, special
arrangements
(1) Ways of terminating an employment relationship

The individual labour contract may be terminated only in one of the situations expressly
provided by the Labour Code. According to article 55 of the Labour Code, the individual labour
contract can be terminated as follows
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 law8.
All types of individual labour contracts may be terminated by any of the above-mentioned
modalities, under the terms stipulated by the law.
(2) Exceptions or specific requirements

As mentioned at point I. (3) above, for some categories of employees there have been adopted
specific laws: e.g. civil servants, teachers, legal advisers employed by means of individual labour
contracts, employees of the transportation companies, employees of the post offices and
telecommunication companies, magistrates. The ordinary rules provided by the Labour Code
also apply to these categories of employees, unless the specific applicable law expressly
derogates from the Labour Code’s provisions.
Such specific laws generally stipulate derogatory rules on grounds and procedure of dismissal for
disciplinary reasons, employees’ retirement and, exceptionally, other modalities of termination
of employment relationships (e.g. civil servants).
Under the Romanian labour legislation there are no specific requirements for certain types of
contract. The legislation regulates indefinite term and fixed term individual labour contracts, full-
time and part-time individual labour contract, temporary work contracts, homeworking,
apprenticeship contracts (particular fixed-term labour contracts) without mentioning any
derogatory rules.
The size of the enterprise plays a role only in collective dismissals. There are no additional
specific requirements in relation with the size or characteristics of the employer.
However, some specific provisions relating to termination of employment relationships depend

on the employee’s specific situation. For example, in case of resignation of employees in
executive positions the notice period cannot exceed 15 calendar days, while in case of employees
in management positions the notice period cannot exceed 30 calendar days.
Other specific rules apply for the termination of the individual labour contract of the employee
who is on probationary period. Thus, in case one of the parties intends to terminate the individual
labour contract during or at the end of the probationary period he/she is not obliged to observe
the procedure provided by the Labour Code being enough to provide to the other party a written
notification to this end. In this case do not apply the ordinary rules.
8
As an exception, only in case one of the parties intends to terminate the individual labour contract during or at the
end of the probationary period he/she is not obliged to observe the procedure provided by the Labour Code being
enough to provide to the other party a written notification to this end - article 31 (4¹) of the Labour Code.
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III. Termination of employment relationship by mutual agreement of the parties
(1) Evolution of legislation.

Termination of employment relationship by mutual agreement of the parties has been always
grounded on the principles of the Romanian Civil Code stating that any contract concluded in
conformity with the law may be terminated by mutual agreement (mutuus dissensus) of the
parties.
This modality of termination of the employment relationship is an expression of the freedom of

work principle and both Romanian previous and present Labour Code expressly stipulated it.
Article 55 let. b) of the Romanian Labour Code in force only states that the individual labour
contract may be terminated based on the parties’ consent on the date agreed by the parties. As
well as under the previous Labour Code, no other detailed provision related to the termination of
employment relationship can be found within the Labour Code. By consequent, provisions of the
Civil Code are applicable.

There are no specific provisions on termination of employment relationship by mutual agreement
of the parties. The general rules on termination of contracts are applicable.
Thus, according to the rules of civil law, the mutual agreement of the parties on termination of
employment relationship must accomplish all the conditions provided by the law for the valid
conclusion of any juridical act (contract) – legal capacity of parties, parties’ valid consent, etc.

Under the Romanian labour legislation there are no procedural requirements. The general rules
on termination of contracts are also applicable.
Although the Labour Code does not impose the written form of the mutual agreement of the
parties on termination of the employment relationship as condition of validity, the doctrine
recommends ascertaining in writing the agreement of the parties.
However, the will of any of the parties must be unambiguous. In case of employee’ absences
from his/her job it cannot be assumed employee’s will to terminate the individual labour
contract. On the other side, in case the employer is a legal entity, the will of the employer must
be expressed only by the competent bodies. Finally the doctrine and jurisprudence agreed that
the rules regarding offers and acceptance of offers in case of agreements concluded at distance
are applicable.
(4) Effects of the agreement

The individual labour contract is terminated on the date agreed by the parties. In case the parties
did not specify the date the contract is terminated, the effects of the contract cease on the date the
parties reached the agreement on the termination of employment relationship. If the parties agree
that the contract is terminated on a date that is ulterior to the moment they reached the agreement
on contract’s termination the contract will continue to produce its effects until that date.
However, it was unanimously agreed that in such cases the open-ended individual labour
contracts do not become fixed term individual labour contracts.
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In case of termination of employment relationship by mutual agreement of the parties, under the
Romanian legislation there is no entitlement to severance payments unless agreed by the parties
within the applicable labour collective agreements, individual labour contracts or employment
termination agreements.
The employee is not entitled to unemployment benefits granted by the unemployment insurance
system.
Termination of employment relationship by mutual agreement of the parties does not affect the
rights the employees have within the retirement pension systems or sickness insurance systems.
(5) Vitiating factors, remedies

The Romanian labour legislation does not provide specific vitiating factors or remedies in case
any of the parties of the individual labour contract thinks that the agreement on employment
termination has been concluded by breaching the imperative legal provisions. The general rules
of civil law are applicable. The interested party may claim in front of the court for labour and
social affairs his/her consent has been vitiated. The trade union may act on the behalf of the
employee, unless the employee either opposes or renounces. In such cases, the trade union does
not need a power-of-attorney. The burden of proof rests with the employer.
(6) Penalties
The Romanian labour legislation does not stipulate penalties for the breach of the rules on
termination of employment relationship by mutual agreement of the parties.

Labour collective agreements generally do not contain clauses referring to the termination of
employment relationship by mutual agreement of the parties.
(8) Relations to other forms of termination

Under the Romanian legislation there is a very clear distinction between termination of
employment relationship by mutual agreement of the parties and employees’ dismissal or
resignation.
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IV. Termination of employment relationship otherwise than at the wish of the parties – de
jure termination of the individual labour contract

Termination of employment relationship independent of the wish of the parties (de jure), was
expressly regulated for the first time in the Romanian legislation as a distinct modality of
individual labour contract’s termination by the Romanian Labour Code in force – Law no.
53/2003.
Some of the cases expressly listed by the Labour Code in force as cases of de jure termination of
the employment relationship were regulated by the previous Labour Code as cases of dismissal
of employees. In these cases the employer was obliged to dismiss the employees (e.g. in case it
was forbidden to the employee to perform his job or profession by the decision of the competent
law court). Thus, the termination of the employment relationship was independent of the wish of
the parties and contravened to the notion of dismissal.
The most part of the cases expressly listed by the Labour Code in force as cases of de jure
termination of the employment relationship were not regulated by the previous Labour Code.
However, some of them were appreciated as being cases when the employer could dispose
employees’ dismissal on grounds of employees’ non-professionally fit (e.g. withdrawal of any
authorisation that was necessary for the conclusion of the labour contract). Such interpretation
was given under the conditions imposed by the previous legislation stipulating only cases of
labour relationship termination by mutual agreement or at the wish of one contractual party.
Some other cases of employment relationship termination that were not expressly regulated by
the previous Labour Code could not be appreciated as being included in one of the dismissal
cases provided. In the context of the previous Labour Code, the principle that the termination of
employment relationships can take place only in those cases expressly provided by the law was
applicable. However, although such cases were not provided by the labour legislation, the
doctrine and jurisprudence appreciated them as inevitable cases of employment relationships’
termination (e.g. since the labour contract has an intuituu personae character it ends at the
moment of the contractual party’s death; the employment relationships also ends at the
expiration of contract’s duration).
Under these circumstances, it was obvious that the express regulation of the cases when
termination of employment relationship takes place otherwise than at the wish of the parties was
necessary. The discussions and opinions developed by doctrine and jurisprudence were taken
into account in elaborating the new Romanian Labour Code – Law no. 53/2003. Thus, article 56
of the Labour Code in force stipulates at present all the cases when the individual labour contract
is de jure terminated.
(2) Cases/grounds of de jure termination

According to article 56 of the Romanian Labour Code, the individual labour contract is de jure
terminated:
a) on the date of the death of the employee or employer, if he/she is a natural person;
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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 person, 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 decision of retirement for age limit, anticipated retirement, partially anticipated
retirement or retirement for 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 is delivered;
g) as a result of a sentence to execute an imprisonment punishment, from the date the final
judgement is delivered;
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 to perform a job, 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.
2.1. Death of employee or death of employer, if he/she is a natural person

Since the individual labour contract has an intuituu personae character, the rights and obligations
of the individual person – employer or employee cannot be transferred to his/her successors.
Thus, article 56 a) of the Labour Code stipulates that the labour contract is de jure terminated on
the date of the death of the employee or employer, if he/she is a natural person, independently of
the wish of any contractual party.
2.2. Declaring the death or placing under interdiction of the employee or of the employer, if
he/she is a natural person, by final judgement of a law court
According to article 56 b) of the Labour Code, the individual labour contract is de jure
terminated on the date a final judgement is delivered, declaring the death or placing under
interdiction of the employee or of the employer, if he/she is a natural person, and if this causes
the business liquidation.
Termination of the labour contract in case of declaring contractual party’s death is grounded on
the above-mentioned arguments justifying contract’s termination in case of the death of the
employee or employer, if he/she is a natural person.
On the other side, in case of declaring contractual party’s interdiction by final judgement of a
law court, such party does not accomplish anymore the condition to have legal capacity (capacity
to exercise his/her rights). Since according to the rules of civil law during the entire period the
contract is in force any of the contractual parties must have the capacity to exercise his/her
rights, the contract must be terminated if this condition is not accomplished anymore9.
9
The occurrence of a final judgement, declaring the death or placing under interdiction of the employee or of the
employer, if he/she is a natural person, may not cause the liquidation of a “business” if the employer concluded the
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This provision is in conformity with article 13 (4) of the Labour Code stating that employment of
persons placed under court interdiction is prohibited. As well, according to article 14 (3) of the
Labour Code, a natural person can conclude individual labour contracts, as an employer, after
having acquired the capacity to exercise his/her rights.
2.3. Dissolution of the employer who is a legal entity

Article 56 c) of the Labour Code regulates the de jure termination of the individual labour
contract as a result of the dissolution of the employer, if this is a legal entity, from the date the
legal entity ceases to exist.
Under the Romanian legislation the decision of a company dissolution may be followed either by
a liquidation of its patrimony or by a reorganisation, modification of the company.
In case of dissolution followed by liquidation of patrimony the employees are protected the
contracts being terminated de jure only from the date the legal entity ceases to exist.
If the decision of dissolution is followed by a modification of the company and the company
preserves its legal personality, the labour contracts will not be terminated de jure. Moreover, in
case the company will be subjected to a reorganisation (division, merger) and will cease to exist
as a legal entity, the employees are protected by the provisions of article 169 and 170 of the
Labour Code stating that the employees shall benefit from the protection of their rights in the
event of a transfer of the company, of the unit, or of parts thereof to another employer. In such
situations the transferor’s rights and obligations, which derive from a labour contract or
relationship existing on the date of the transfer, shall be fully transferred to the transferee.
However, if the decision of dissolution has been issued but the company did not cease to exist as
a legal entity, so that the labour contract cannot be yet terminated de jure, the termination of the
contract is possible by employee’s resignation or employer’s decision of dismissal in case the
dismissal conditions are met (e.g. the employee is found guilty for the company’s bankruptcy).
2.4. Communication of employee’s retirement decision

According to article 56 d) of the Labour Code, as modified by Governmental Emergency
Ordinance no. 65/2005 approved by Law no. 371/2005, the individual labour contract is de jure
terminated on the date the decision of retirement for age limit, anticipated retirement, partially
anticipated retirement or retirement for disability of the employee is communicated, according to
the law.
Retirement for age limit is granted to any natural person insured in the public system of pensions
in case he/she cumulatively accomplishes the conditions of retirement age and minimum
contributory period in the public system. Articles 41 to 48 and Annexes of the Law no. 19/2000
on the public system of pensions and other social insurance rights mention these conditions. The
standard pension age is 60 years for women and 65 years for men and the minimum contributory
period is 15 years, both for women and men10.
labour contract as representative of a family association. The family associations are not considered as legal entities
by the legislation in force.
10
The increase of the standard pension age from 57 years for women and 62 years for men to 60 years for women and
65 years for men, and the increase of minimum contributory period from 10 years to15 years takes place in 13 years
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Anticipated retirement may be accessed with maximum 5 years before reaching the standard
pension-age by any natural person insured in the public system of pensions if he/she exceeded
the full contributory period with at least 10 years. The full contributory period is 30 years for
women and 35 years for men11.
Partially anticipated retirement may be accessed with maximum 5 years before reaching the
standard pension-age by any natural person insured in the public system of pensions if he/she has
completed the full contributory period or exceeded the full contributory period with less than 10
years.
Disability retirement is granted to any natural person insured in the public system of pensions in
case he/she has lost, totally or at least half of his/her work-capacity, because of work accidents,
professional diseases and tuberculosis, ordinary diseases and accidents unrelated to work. Any
such person may apply for the disability retirement if he/she has completed the necessary
contributory period in the public system, as provided by the law, or at least half of this period.
Possibility to conclude a new labour contract. According to the Labour Code’s provisions, in
case the decision of retirement for age limit, anticipated retirement, partially anticipated
retirement or retirement for disability of the employee is communicated the termination of
employment relationship cannot be avoided. The individual labour contract is de jure terminated
on the date the decision of retirement is communicated and the employer can only acknowledge
such termination. However, even if the employment relationship is terminated, in some cases the
retiree (pensioner) may conclude a new labour contract.
Thus, in conformity with Law no. 19/2000, from among the retired persons only those retired for
age limit or for 3rd degree disability may conclude an individual labour contract with the same
employer or with another employer12. In such a case, the labour contract may be, according to
the rule stipulated by the Labour Code, an open-ended contract.
However, following the amendment of the Labour Code by Governmental Emergency Ordinance
no. 65/2005 approved by Law no. 371/2005, the employment of retirees represents one of the
exceptional situations when the labour contract may be concluded on a fixed term period. Thus,
the labour contract of the retiree may also be concluded on a fixed term period not exceeding 24
months, under the conditions listed by articles 80 to 86 of the Labour Code in force.
2.5. Acknowledgement of the absolute nullity of the individual labour contract
from the date when Law no. 19/2000 entered into force (April 2001), according to the provisions of the Annexes.
The Law also provides exceptional cases of retirement for age limit for those insured persons performing activity in
outstanding work conditions or special work conditions as stipulated by the law.
11
This full contributory period is to be achieved within 13 years from the date Law no. 19/2000 entered into force, by
its increasing from 25 years for women and 30 years for men, in accordance with the provisions of the Annexes.
12
The law classifies disability as follows:
a) 1st degree disability - total loss of work-capacity, self-service ability requiring assistance or permanent
surveillance by another person;
b) 2nd degree disability - total work-capacity loss, self-service ability without another person’s help;
c) 3rd degree disability - loss of minimum half the work-capacity, the disabled person being still able to work.
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Article 56 e) of the Labour Code settles de jure termination of the individual labour contract as a
result of acknowledgement of the absolute nullity of such individual labour contract, from the
date the nullity was acknowledged based on the parties' consent, or a final judgement.
According to the Labour Code, the failure to comply with any of the necessary lawful conditions
for the valid conclusion of the individual labour contract entails its nullity. The nullity of the
individual labour contract can be removed by the subsequent observance of the conditions
imposed by the law.
The acknowledgement of the nullity of the individual labour contract cannot be the result of the
will of only one of the contractual parties. According to the Labour Code, the acknowledgement
of nullity and setting up of the effects thereof can be done by consent of the parties. If the parties
do not reach to an agreement, the nullity shall be acknowledged by judgement of a law court.
According to the Labour Code, the acknowledgement of the nullity of the individual labour
contract shall have effects in the future. By consequent, the law expressly settles that a person
who has worked within a null individual labour contract is entitled to its payment in relation to
the way in which job assignments have been accomplished. This rule is characteristic for all the
contracts that determine more than one successive performance acts or deeds. This is the main
argument that determined the option of the legislator to provide for the termination of
employment relationship in case of acknowledgement of the absolute nullity of the individual
labour contract.
However, the individual labour contract is terminated only in case it is affected by total nullity. If
only a clause is vitiated by nullity, since it establishes rights or obligations for the employees,
which contravene to some imperative lawful norms or applicable collective labour contracts, and
it has been acknowledged the nullity of such clause according to the Labour Code, this clause
shall be replaced de jure by the applicable lawful or conventional provisions, and the employee
shall be entitled to damages.
2.6. Reinstatement in the position occupied by the employee of the person who was previously
dismissed from the same position unlawfully or for ill-founded grounds
In case a law court would admit by final judgement the petition for reinstating in the position
occupied by the employee a person dismissed unlawfully or for ill-founded grounds the
employer could be in a difficult situation in the absence of an express provision on the
termination of employment relationship being obliged at the same time to observe both the
court’s final judgement to reinstate the person previously dismissed and the individual labour
contract of the employee hired on the same position. However, practically it is not possible two
distinct persons to be employed on the same position.
Since both former employee and present employee have no guilt in the occurrence of this
situation, the legislator had to choose to protect the interests of only one of them taking into
account the position of the employer. Thus, if the person protected was the present employee, the
employer could get rid of any of his employees by unlawful or ill-founded dismissal having
subsequently employed another person on the same position.
By consequent, in order to protect employees from unlawful or ill-founded dismissals, the

legislator chose to protect the person dismissed unlawfully or for ill-founded grounds stating by
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August 2006
article 56 f) of the Labour Code that in case a law court admits by final judgement the petition
for reinstating such an employee, the individual labour contract of the employee subsequently
employed on the same position is de jure terminated on the date the final judgment is delivered.
All the difficulties noticed by the doctrine and jurisprudence related to the interpretation and
application of such a provision have been taken into account on the elaboration of the Labour
Code in force. Thus, under the previous Labour Code, the law court was obliged to reinstate the
employees in case of acknowledging they were unlawfully dismissed or for ill-founded grounds,
independently whether or not such employees asked for reinstatement. In this context, in order to
protect the interests of the person subsequently employed on the same position, the doctrine and
jurisprudence appreciated that such employee could be dismissed only following the former
employee’s express request to be reinstated.
At present, according to the new Labour Code, in case the law court acknowledges the employee
was unlawfully dismissed or for ill-founded grounds it may reinstate the employee only if he/she
expressly requests so.
As a conclusion, according to the Labour Code in force, the individual labour contract is de jure
terminated, independently of any contractual party’s will, only in case the following conditions
are cumulatively accomplished:
a) employment relationship between the plaintiff and the employer were terminated by
unlawful or ill-founded dismissal his/her position becoming a vacant position;
b) another person was subsequently employed on the same position;
c) the plaintiff requests for both the acknowledgement of the nullity of the dismissal
decision and his/her reinstatement;
d) the petition for reinstating is admitted by final judgment of the competent law court.
2.7. The employee is sentenced to serve a custodial penalty

According to article 56 g) of the Labour Code, the individual labour contract is de jure
terminated as a result of a sentence to serve a custodial penalty, from the date the final judgment
is delivered.
2.8. Withdrawal of the approvals, authorisations, or certifications necessary for exercising one's
profession
Article 56 h) of the Labour Code stipulates that the individual labour contract is de jure
terminated from the date of withdrawal, by the competent authorities or bodies, of the approvals,
authorisations, or certifications necessary for exercising one's profession.
The individual labour contract cannot produce its effects if any of the conditions provided by the
law for exercising one's profession are not accomplished anymore.
Under the previous Labour Code this case of termination of employment relationship was not
expressly provided. However, the doctrine and jurisprudence constantly appreciated that in such
situation the employees could have been dismissed on grounds of “non-professionally fit”. The
lacunae of the previous legislation were taken into account in the elaboration of the Labour Code
in force. De jure termination of the individual labour contract, independently of any contractual
party is more justified in the situation of withdrawal, by the competent authorities or bodies, of
the approvals, authorisations, or certifications necessary for exercising one's profession.
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August 2006
2.9. Interdiction to exercise a profession or to perform a job

The individual labour contract is de jure terminated under article 56 i) of the Labour Code as a
result of the interdiction to exercise a profession or to perform a job, as a safety measure or
complementary punishment, from the date the final judgment ordering the interdiction was
delivered.
Independently of any of the contractual parties’ will, the individual labour contract cannot
produce its effects if the employee exercised a profession or performed a job and it was delivered
a final judgement ordering the interdiction to exercise that profession or to perform that job. The
observance of the final judgement is compulsory.
2.10. Expiry of the duration of the individual labour contract concluded for a fixed term
This situation of termination of employment relationship was also provided by the previous
Labour Code. However, the expiry of the duration of the individual labour contract was the only
termination modality distinct from dismissal, resignation and mutual agreement of the parties
and it was not expressly identified as determining de jure termination of employment
relationship.
At present, according to article 56 j) of the Labour Code, the individual labour contract
concluded for a fixed term is de jure terminated on the expiry of the fixed term it was concluded
for.
The individual labour contract concluded for a fixed term may be terminated before expiry of its
duration by occurrence of other situations expressly provided by the Labour Code (de jure
termination, resignation, dismissal, mutual agreement of the parties).
In case following the date of expiry of the duration of the individual labour contract concluded
for a fixed term the parties continue to fulfil their contractual obligations, it is assumed that they
concluded another individual labour contract. According to the Labour Code rules, this new
contract concluded by tacit mutual agreement is and open-ended individual labour contract.
However, it is necessary that parties’ tacit mutual agreement to be unambiguous in what
concerns the conclusion of a new contract. Thus, it could not be assumed the conclusion of a new
contract in case parties’ activities performed after expiry of contract’s duration could be related
to their obligations to deliver job reports, tools, and other means or, by case, owed payments.
2.11. Withdrawal of the parents’ or legal representatives’ consent

The parents’ or legal representatives’ consent is compulsory for the conclusion of an individual
labour contract in case of employment of a teenager who is 15 to 16 years old. This condition
aims teenagers’ protection. Under the previous Labour Code, the withdrawal of the parents’ or
legal representatives’ consent, for employees whose ages range between 15 and 16 years, was
not expressly provided among the situations of termination of employment relationship.
However, the doctrine and jurisprudence appreciated that in such cases the individual labour
contract is terminated.
Following this general opinion, article 56 k) of the Labour Code in force stipulates that the
individual labour contract is de jure terminated from the date of withdrawal of the parents’ or
legal representatives’ consent, for employees whose ages range between 15 and 16 years.
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August 2006

In case the individual labour contract is de jure terminated, the Romanian legislation does not
impose to the employer to observe any procedural requirements. There are no specific rules
concerning a written document issued by the employer, the form and content of such a
document. However, it is recommended for the employer to issue a written document
ascertaining the occurrence of one of the situations listed by article 56 of the Labour Code and,
by consequent, the de jure termination of the individual labour contract.
In case the individual labour contract of the employee is de jure terminated on the date a final
judgement of a law court is delivered admitting the petition for reinstating an employee who
being employed on the same position was previously dismissed unlawfully or for ill-founded
grounds, the employer is obliged to offer to the employee whose individual labour contract is
terminated a vacant position in the company, consistent with his/her professional training, under
article 64 of the Labour Code. If there is a vacant position in the company consistent with the
employee’s professional training, the employer is obliged to offer it to the employee. The
employer’s obligation to offer to the employee a vacant position in the company arises on the
date the employment relationship is terminated. Non-observance of this obligation does not have
any consequence on the termination of the employment relationship. However, the employee
may ask the law court to oblige the employee to observe such obligation.
The employee has at his/her disposal a period of 3 working days from the employer's
communication to state in writing his/her consent concerning the new job offered. If the
employee accepts the employer’s offer within the term stipulated a new labour contract is
concluded between the employer and the employee.
If the employer has no vacant positions in the company consistent with employee’s professional
training, he is obliged to ask the territorial employment agency for support in the redeployment
of the employee according to his/her professional training.
(4) Effects of the existence of a ground of de jure termination of employment relationship

In case of occurrence of one of the situations/grounds listed by article 56 of the Labour Code, the
individual labour contract is terminated on the date mentioned by this provision.
In case of de jure termination of employment relationship by mutual agreement of the parties,

under the Romanian legislation there is no entitlement to severance payments unless agreed by
the parties within the applicable labour collective agreements, individual labour contracts or
agreements concluded on the occasion of employment termination.
The employee is entitled to unemployment benefits granted by the unemployment insurance

system in case the employment relationship is de jure terminated for the reasons stipulated by
article 56 letters a), b), c), e), f), h) and j) of the Labour Code (death of the employee or
employer, if he/she is a natural person; declaration by a final judgement of the death or placing
under interdiction of the employee or of the employer, if he/she is a natural person; dissolution of
the employer, if this is a legal entity; finding the absolute nullity of the individual labour
contract; admittance of the petition for reinstating in the position occupied by the employee a
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August 2006
person dismissed unlawfully or for ill-founded grounds; withdrawal, by the competent authorities
or bodies, of the approvals, authorisations, or certifications necessary for exercising one's
profession; expiry of the deadline of the individual labour contract concluded for a definite
term).
Termination of employment relationship by mutual agreement of the parties does not affect the
rights the employees have within the retirement pension systems or sickness insurance systems.
The retirement of an employee (communication of employee’s retirement decision) represents
one of the reasons of de jure termination of employment relationship.
(5) Remedies
The Romanian labour legislation does not provide specific remedies in case any of the parties of
the individual labour contract thinks that the employment relationship was not de jure
terminated. The general rules of civil law and civil procedure law are applicable. Any of the
parties may claim his/her rights in front of the law court for labour and social affairs. The trade
union may act on the behalf of the employee on grounds of the special provisions of Law on
trade unions no. 54/2003, unless the employee either opposes or renounces. In such cases, the
trade union does not need a power-of-attorney. The burden of proof rests with the employer.
(6) Penalties
The Romanian labour legislation does not stipulate penalties for the breach of the legal
provisions on de jure termination of employment relationship.

Labour collective agreements generally do not contain clauses referring to the de jure
termination of employment relationship.
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August 2006
V. Termination of employment relationship by employer’s initiative - dismissal
1. Evolution of legislation
The most part of the previous Labour Code and legislation in the area of employees’ dismissal
have been overtaken by the present Labour Code. However, the reasons of dismissal are fewer.
Some of the dismissal reasons provided by the previous Labour Code determine at present de
jure termination of employment relationship while some other cases are not mentioned anymore
by the present Labour Code. Thus, the present legislation has been adapted to the Romanian
economic and social reality, some recommendations made by the doctrine being also taken into
account.
In the same time, the dismissal conditions became more burdening for the employers. In this
context, although the decision to dismiss an employee is well-grounded, the dismissal decision is
null and void if the employer does not observe any of the procedural requirements such as
mentioning within the written decision of dismissal the duration of the notice period, details
about the period within which it can be contested or the law court where the complaint must be
lodged.
Taking into account the necessity to strike a balance between flexibility for undertakings and
security for workers, as well as the difficulties of interpretation, some amendments have been
recently brought to the Labour Code: the procedure of collective dismissals was simplified, the
disciplinary inquiry procedure was replaced with the procedure of evaluation in case of
employee’s dismissal for being professionally unfit, the procedure of employee’s dismissal
during the probationary period was also simplified, etc.
2. Overview of the legislation in force
According article 58 of the Labour Code, the dismissal represents the termination of the
individual labour contract on the employer’s initiative.
Under the Romanian labour legislation in force, the wish of the employer is not sufficient in
itself to justify dismissal. The dismissal is permitted only in the situations (grounded on the
reasons) expressly listed by the Labour Code and with the observance of the dismissal procedure
and formalities stipulated by the Labour Code. The dismissal decision must be well grounded.
Dismissal for certain grounds is prohibited. Moreover, the dismissal is temporarily prohibited if
the employee is in one of the situations listed by the Labour Code.
Under the Labour Code’s conditions, the dismissal can be ordered for reasons related to the
employee’s person or for reasons which are not related to the employee’s person. This
classification of dismissal grounds does not correspond to the classification made by the doctrine
and jurisprudence into reasons that can be imputed to the employee and reasons that cannot be
imputed to the employee. Dismissal reasons that are related to the employee’s person may be
reasons that can be imputed to the employee (disciplinary reasons) or reasons that cannot be
imputed to the employee (non-professionally fit). Dismissal reasons that are not related to the
employee’s person are always reasons that cannot be imputed to the employee. However, the
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August 2006
existence of employee’s guilt in case of dismissal determines whether or not he/she has the right
to benefit from unemployment compensations provided by the law or applicable collective
agreements or unemployment allowance within the unemployment insurance system.
The dismissal for reasons related to the employee’s person. According to article 61 of the Labour
Code, the employer can order the dismissal for reasons related to the employee's person under
the following circumstances:
a) if the employee committed a serious infraction or repeated infractions of discipline by
breaching the rules of the work discipline or those set by the individual labour contract,
the applicable collective contract, or the company’s rules and regulations (disciplinary
sanction);
b) if the employee is taken into preventive custody for a period exceeding 30 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;
e) in case the employee meets retirement conditions and he/she did not apply for retirement.
The dismissal for reasons not related to the employee’s person. Article 65 of the Labour Code
stipulates that the dismissal for reasons not related to the employee’s person represents the
termination of the individual labour contract, caused by the suppression of that employee’s
position due to economic difficulties, technological changes, or activity reorganisation. The
suppression of a position must be effective and have an actual serious cause, one of those above-
mentioned13. Under the Labour Codes’ conditions, only the dismissal for reasons not related to
the employee’s person can be either individual or collective.
Other situations (grounds) of dismissal could never be added to those mentioned by the Labour
Code by clauses of collective labour agreements or provisions of employers’ internal rules. Any
unjustified or ill-grounded dismissal is unlawful.
Regarding the procedural requirements, the dismissal decision must be issued in a written form.
In all the situations when the reason of dismissal cannot be imputed to the employee, the
employer must observe a notice period. He cannot choose to pay compensation instead. The
Romanian legislation does not stipulate the notion of “summary dismissal”. However, the
employer is not obliged to observe a notice period in case he dismisses the employee on
disciplinary grounds. In case of dismissal for disciplinary grounds, for being professionally unfit
and in case of collective dismissals, the legislation grants to the employees the right to previously
know why they are dismissed and be heard and express their views. The principle ultima ratio is
present within the procedural requirements under different forms (alternatives to dismissal, less
severe disciplinary sanctions). The dismissal is unlawful in case of non-observance of any
procedural requirement.
13
According to the proposal of amendment of the Labour Code by means of a Governmental Emergency Ordinance
published on 31st of July 2006 on the website of the Romanian Ministry of Labour, Social Solidarity and Family, the
dismissal for reasons not related to the employee’s person represents the termination of the individual labour
contract, caused by the suppression of that employee’s position due to some reasons not related to his/her person.
The suppression of the employee’s position must be effective and have an actual serious cause.
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August 2006
As an exception, during or at the end of the probationary period the employer who dismisses the
employee is not obliged to observe the procedure provided by the Labour Code being enough to
provide the employee with a written notification of termination of employment relationship.
3. Prohibition of employee’s dismissal
The situations when it is permanently or temporarily prohibited to the employer to dismiss

employees are expressly listed for the first time by the Labour Code in force.
The permanent prohibition of employees’ dismissal refers to those aspects that could never
constitute grounds for employees’ dismissal. According to the Labour Code, employees’
dismissal is prohibited:
a) based on criteria such as gender, sexual orientation, genetic characteristics, age, national
origin, race, colour of the skin, 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.
Prohibition of dismissals on discriminatory criteria is in concordance with the Romanian

legislation adopted in the area of non-discrimination principle, mainly the Governmental
Ordinance no. 137/2000 on prevention and sanctioning all forms of discrimination.
As well, prohibition of dismissals ordered for the exercise, under the terms of the law, of their
right to strike and trade union rights is in concordance with the legislation in force in the area of
labour conflicts and trade unions, Law no. 168/1999 on settlement of labour conflicts and Law
no. 54/2003 on trade unions. Thus, according to article 54 of Law no. 168/1999, the participation
in the strike or organization of a strike, with the observance of the provisions of the law, does not
represent a violation of the job duties of the employees and can not have negative consequences
on the strikers or on the organizers. For the period of the strike the employees shall preserve all
the rights deriving from the individual labour contract, except for the wage rights since the
participation in the strike determines the suspension of the individual labour contract under the
conditions of article 51 (1) f) of the Labour Code. However, in case the law court ascertains the
illegal character of the strike, the employer may dismiss the employees participating in the strike
on disciplinary grounds under the Labour Code’s conditions. As well, article 10 (2) of Law no.
54/2003 forbids the dismissal of both of the representatives elected in the management bodies of
the trade union organisations and of their members, for reasons concerning the trade union
activity.
The temporary prohibition to dismiss an employee is justified by the special situation of the
employee who needs a special protection. The dismissal of the employee who is in such a special
situation is prohibited even if the dismissal could be well-grounded. The Labour Code in force
forbids to the employer to dismiss the employee:
a) for the duration of the medical leave, 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 took knowledge about this
fact prior to the issuance of the dismissal decision;
d) for the duration of the maternity leave;
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August 2006
e) for the duration of the leave for raising a child up to the age of 2 years, or, in case of a
disabled child, up to the age of 3 years;
f) leave for looking after a sick child up to the age of 7 years or, in case of a disabled child, for
certain diseases, up to the age of 18 years;
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
by that employee;
i) for the duration of the rest leave.
Article 21 of the Governmental Emergency Ordinance no. 96/2003 on protection at work of

pregnant women, women who have recently given birth or are breastfeeding adds to these
situations the prohibition to dismiss an employed woman during her maternity risk leave, as
granted by this special law, as well for maximum 6 months after the employed woman returns on
job.
The prohibition to dismiss the employee who is in one of the abovementioned situations is not
applicable in cases of dismissal for reasons due to the employer's judicial reorganisation or
bankruptcy, according to the law.
Special attention must be given to the situation when an employee exercises an elected position
in a trade union body. The prohibition stipulated by article 60 (1) h) is completed by some other
dispositions of the legislation in force (articles 223 (2) and 229 of the Labour Code). According
to all these applicable provisions, the representatives elected in the trade union management
bodies cannot be dismissed for the entire duration of their mandate, for any dismissal reason,
except when the dismissal is ordered for a serious infraction of discipline or for repeated
infractions of discipline by that employee. As well, the representatives elected in the trade union
management bodies cannot be dismissed for reasons not connected with the employee's person,
for being professionally unfit, or for reasons related to the office received from the employees in
the company, for a period of 2 years after termination of their mandate.
Article 229 of the Labour Code adds another situation to the cases when the employees’
dismissal is prohibited. Thus, employees’ elected representatives cannot be dismissed for reasons
not connected with the employee’s person, for being professionally unfit, or for reasons related
to the carrying out of their attributions, for the entire period of exercising their mandate.
If the competent law court appreciates the dismissal as being ordered with non-observance of
prohibitions stipulated by the law the court must pronounce 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. However, the law court may
reinstate the employee only if he/she expressly requested so.
4. Dismissal on disciplinary grounds

The employer can order employee’s dismissal as a disciplinary sanction in two cases expressly
specified by article 61 a) of the Labour Code:
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August 2006
a) in case the employee committed a serious infraction of discipline by breaching the rules
of the work discipline or those set by the individual labour contract, the applicable
collective contract, or the company’s rules and regulations;
b) in case the employee committed repeated infractions of discipline by breaching the rules
of the work discipline or those set by the individual labour contract, the applicable
collective contract, or the company’s rules and regulations
As a disciplinary sanction, employee’s dismissal is grounded on employee’s subordination to the

employer and, by consequent, on employer’s disciplinary prerogative, being entitled to apply,
according to the law, disciplinary sanctions onto his employees whenever he finds they have
committed an infraction of discipline.
According to article 263 (2) of the Labour Code, an infraction of discipline is a deed related to
work, which consists of an action or non-action guiltily performed by an employee, who has thus
violated the provisions of the law, the company’s rules and regulations, the individual labour
contract or the applicable individual labour contract, the lawful orders and decisions of his/her
superiors.
Taking into account that the dismissal is the most serious disciplinary sanction that may be
ordered to an employee, it cannot be ordered in any situation when the employee commits an
infraction of discipline. Such a disciplinary sanction may be ordered only if the employee
commits a serious infraction of discipline or repeated infractions of discipline. Under the
provisions of the Labour Code, in case the employee commits infractions of discipline the
dismissal appears as ultima ratio, representing the employer’s final solution.
Serious infractions of discipline are neither defined nor enumerated by the Labour Code. Under
these circumstances the employer must consider the seriousness of any infraction of discipline in
view to establish the applicable disciplinary sanction by taking into account under article 266 of
the Labour Code the following elements: the circumstances under which the deed took place, the
employee's guilt degree, the consequences of the infraction of discipline, the employee’s general
behaviour at work, possible disciplinary sanctions previously undergone by him/her.
The doctrine and jurisprudence constantly underlined that the dismissal of the employee who
committed an infraction of discipline must be an extreme measure, applicable only if by taking
into account all the circumstances it results the impossibility of continuing the employment
relationship.
Article 258 (1) f) of the Labour Code states that the company’s rules and regulations must
provide rules on infractions of discipline and applicable sanctions. Thus, it is possible (and
recommended) to define and even enumerate within the company’ rules and regulations the
infractions of discipline, as well as the serious infractions of discipline that may lead to the
employee’s dismissal. Such provisions may also be specified within the applicable labour
collective agreement or employees’ individual labour contracts.
Repeated infractions of discipline represent the situation when the employee commits at least
two infractions of discipline. It is not necessary that one of them to be a serious infraction of
discipline. If one of the repeated infractions of discipline would be a serious one this should be
enough to lead to the employee’s dismissal.
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August 2006
In case the employee commits two or more infractions of discipline, the serious character is
represented by his/her recidivist attitude in breaching his/her obligations. Thus, in establishing
the sanction of employee’s dismissal the employer can take into account previous infringements
of discipline committed by the employee even those for which he/she has been previously
sanctioned, under the condition that the employee committed a new infringement for which
he/she was not sanctioned yet.

The employer may dismiss the employee on disciplinary grounds only after having completed
the preliminary disciplinary inquiry and with the observance of the term and other procedural
requirements set by the Labour Code.
Previous disciplinary inquiry. Following amendment of the Labour Code by Governmental

Emergency Ordinance no. 65/2005 approved by Law no. 371/2005, article 62 (1) expressly
stipulates that in case of employee’s dismissal for disciplinary reasons the employee may issue
the dismissal decision only with the observance of articles 263 to 268 of the Labour Code. This
provision was necessary taking into account that the rules on the disciplinary inquiry procedure
are not mentioned within the title and chapter referring to the employees’ dismissal.
Articles 263 to 268 of the Labour Code refer to employees’ disciplinary liability. In conformity
with article 267 (1), the employer is obliged to carry out the preliminary disciplinary inquiry
procedure if he intends to order a disciplinary sanction to an employee (excepted being the
sanction of the written warning). In case the employer does not comply with this obligation the
measure of sanctioning the employee is null and void. Thus, since the dismissal on disciplinary
reasons represents a disciplinary sanction the employer is obliged to previously carry out the
preliminary disciplinary inquiry.
The disciplinary inquiry is carried out by the person or persons designated by the employer’s
management body.
The person designated by the employer to make the inquiry is obliged to invite the employee in
writing, stating the object, date, time, and place of the meeting. In case the employee claims the
nullity of the dismissal decision in front of the law court the employer has the burden to prove
that the decision is legal and well-grounded. Thus, the employer must also prove that the
employee was legally invited to the inquiry. Thus, the jurisprudence stated that the recipient
(employee) is legally invited in the following cases: communication attested by employee’s
signature in the expedition registry, communication attested by employee’s signature on a copy
of the document, registered mail with confirmation of receipt, communication through one of the
modalities provided by the civil procedure.
In case the employee is not invited in accordance with the Labour Code’s provisions, but he/she
comes at the meeting and the disciplinary inquiry is carried out, the lack of procedure is removed
and there will be no consequence on the validity of the disciplinary inquiry carried out and
dismissal decision.
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August 2006
If the employee fails to come to the meeting without an objective reason although he/she has
been invited in accordance with the Labour Code’s provisions the employer will be entitled to
order sanctions, although the preliminary disciplinary inquiry is not carried out.
During the preliminary disciplinary inquiry, the employee has the right to formulate and support
all evidence in his/her defence, and to offer the person in charge of the inquiry all the evidence
and motivations he/she deems necessary, as well as the right to be assisted, at his/her request, by
a representative of the trade union whose member he/she is.
In analyzing all evidences provided and employee’s motivations during the preliminary
disciplinary inquiry the employer may also take into account elements ascertained by documents
issued by other institutions (e.g. criminal inquiry organs).
Notice period. The employer is not obliged to respect a notice period in case he intends to
dismiss the employee on disciplinary grounds.
Term of issuance of the dismissal decision. The employer is obliged to order the disciplinary
sanction by means of a written decision, within 30 calendar days from the date of learning about
the infraction of discipline, but no later than 6 months from the date the deed was committed.
The dismissal decision is null and void if it is issued after the expiration of the term within which
it should have been ordered.
Written form and content of the dismissal decision. The employer is obliged to issue the
dismissal decision in writing. The dismissal decision must contain, under the sanction of absolute
nullity, the following elements listed by article 268 (2) of the Labour Code:
a) the description of the deed representing an infraction of discipline;
b) the mention of the provisions of the personnel statute, the company’s rules and
regulations, or applicable collective labour contract, which have been breached by the
employee;
c) the reasons for which the defending arguments submitted by the employee during the
preliminary disciplinary inquiry have been disregarded, or the reasons for which, under
the terms of article 267 (3), no such inquiry has been carried out;
d) the de jure grounds of the disciplinary sanction applied;
e) the term within which the sanction can be challenged;
f) the competent court of law before which the sanction (dismissal on disciplinary grounds)
can be challenged.
The dismissal decision not issued in writing or which does not comprise the elements expressly
listed by the Labour Code is null and void.
Communication of the dismissal decision. The dismissal decision must be communicated to the
employee in writing and shall take effects from the date of its communication.
The jurisprudence stated as communication modalities: communication attested by employee’s

modalities provided by the civil procedure. An oral communication of the dismissal decision is
not a valid communication.
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August 2006
According to article 268 (3) of the Labour Code, in case of employee’s dismissal for disciplinary
reasons the decision must be communicated to the employee within 5 calendar days at the latest
from the date of its issuance and causes effects from the date of communication. The doctrine
and jurisprudence appreciated this term as being only recommended. Thus, non-observance of
the communication term does not affect the validity of the dismissal decision. In case the
dismissal decision is communicated after expiry of this term the decision will cause effects from
the date of its communication.
The date of communication is very important since this is the moment of calculation of the term
of 30 calendar days within which the dismissed employee may contest the dismissal decision
before the competent law court.

The employment relationship is terminated as effect of the dismissal ordered by the employer
from the date of its communication or from the date expressly mentioned within the dismissal
decision if this date is subsequent to the date it has been communicated.
In case the employee is dismissed on disciplinary grounds, under the Romanian legislation there
is no entitlement to severance payments unless agreed by the parties within the applicable labour
collective agreements, individual labour contracts or employment termination agreements. The
employee is not entitled to unemployment benefits granted by the unemployment insurance
system.
The dismissal on disciplinary grounds does not affect the rights the employees have within the
retirement pension systems or sickness insurance systems.
(4) Remedies
If the employee was dismissed on disciplinary grounds he/she may contest the dismissal as being
unlawful or for ill-founded grounds to the court for labour and social affairs within a term of 30
days from the date the dismissal has been communicated to him/her. The trade union may act on
the behalf of the employee, unless the employee either opposes or renounces. In such cases, the
trade union does not need a power-of-attorney. The burden of proof rests with the employer.

Under the Romanian legislation there is no procedure of suspension of the dismissal decision.

If the competent law court appreciates the dismissal as being either unjustified or ill-grounded or
ordered with non-observance of any of the procedural requirements stipulated by the law the
court must pronounce 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. The reinstatement of the employee may be ordered by the law court
only if the employee expressly requested so.
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August 2006
(7) Penalties
provisions on employees’ dismissal.
Regarding the restoration of employment, the Labour Code stipulates that the employer may be
imprisoned or sentenced to pay a penalty if he refuses to observe the reinstatement of an
employee ordered by final decision of the court.

Labour collective agreements may contain clauses defining the “serious infraction of discipline”
and clauses detailing the previous inquiry procedure. Such collective agreements cannot breach
the imperative provisions of the Labour Code either by stipulating additional grounds for
dismissal as disciplinary sanction or by derogation from the procedural requirements.
In Romania, since the legislation in force does not provide severance payments or other
compensations for employees dismissed on disciplinary grounds, the labour collective
agreements do not mention such rights for the employees.
5. Dismissal for other reasons related to the employee’s person

Dismissal in case employee is taken into preventive custody. According to the Labour Code, the
employer can order employee’s dismissal if the employee is taken into preventive custody for a
period exceeding 30 days, under the rules of criminal procedure. Since the text does not make
any express mention the duration of the preventive custody is counted in calendar days.
This provision aims to protect the employer against the harmful effects the long absence of the
employee could have over the company’s business.
The text refers only to the situation when the employee is taken into preventive custody, since as
mentioned above, his/her imprisonment in view to execute a punishment ordered by a law court
determines de jure termination of the employment relationship.
On the other side, it must be underlined that in case the employee is taken into preventive
custody the employment relationship is de jure suspended under article 50 (1) h) of the Labour
Code, and only if the duration of the preventive custody lasts for 30 days the employer has the
right to dismiss the employee.
Employee’s dismissal before elapsing of the term of 30 days of his/her preventive custody is null
and void but its nullity is removed if the term of 30 days elapses. However, in case the employee
has been dismissed and he is released before elapsing the term of 30 days of his/her preventive
custody the employer is obliged to leave the employee to resume his/her job.
In case it is ascertained that the employee is not guilty the employer who legally dismissed
him/her is not obliged to reinstate the employee. The damages will be paid by the state according
to the rules of criminal procedure.
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August 2006
Dismissal in case of employee’s physical unfitness and/or mental incapacity. The employer may
dismiss the employee under the Labour Code 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.
This reason of dismissal was not expressly provided by the previous Labour Code but such
situation was appreciated by the doctrine and jurisprudence as one case of employee’s
professionally unfitness.
Dismissal in case the employee is not professionally fit. The employee may be dismissed by the
employer if he/she is not professionally fit for his/her job, according to the Labour Code.
In order to ascertain whether or not the employee is professionally fit for his/her job, the doctrine
and jurisprudence stated that it must be taken into account his/her professional knowledge,
abilities and performance in respect of the requirements and attributions of the job, the activity
necessary to be performed in the context of company’s activity. It must also be taken into
account employee’s professional performance the employer is entitled to expect. If the
company’s rules and regulations or the applicable labour collective agreement or the individual
labour contract list some performance criteria that must be achieved by the employee, such
criteria must also be taken into account in considering whether or not the employee is
professionally fit for his/her job. The existence of any harmful consequences over the company
does not constitute a relevant aspect in establishing employee’s professionally unfitness.
The employer is the one entitled to consider and establish whether or not the employee is
professionally fit for his/her job. However, in order to avoid any abuses of employers, the Labour
Code stipulates employer’s obligation to observe the previous evaluation procedure provided by
the labour collective agreement concluded at the national level or applicable labour collective
agreement concluded at the level of the branch of activity and in case such a procedure is not
established by any of these collective agreements it must be provided by company’s rules and
regulations.
Both professionally unfitness and infraction of discipline constitute either failure to execute or
inadequate performance of employee’s obligations. However, the main element distinguishing
the professionally unfitness from the infraction of discipline is the lack of employee’s guilt.
The doctrine underlined that in case it is ascertained that employee’s professionally unfitness
existed at the moment when the individual labour contract was concluded due to the fact that the
employee did not provided the employer with the necessary documents or mislead the employer
on the accomplishment of certain requirements, the individual labour contract is null and void.
By consequent, such contract will be de jure terminated from the date the nullity is
acknowledged based on the parties’ consent, or a final judgement of the competent law court.
Taking into account the evolution of the science and techniques, professionally unfitness may
occur during the period of individual labour contract’s performance. Thus, it is possible in a
certain moment the employer not to be professionally fit to employer’s expectations and
exigencies. As well, although the employee proved at the conclusion of the labour contract that
he/she has the necessary knowledge and aptitudes for the job it is possible that his/her
29
August 2006
performance not to be appropriate in respect of the requirements and attributions of the job, the
activity necessary to be performed in the context of company’s activity.
Dismissal of the employee who meets conditions of retirement for age limit. Taking into account
the provisions of article 56 d) of the Labour Code according to which the individual labour
contract is de jure terminated on the date the decision of retirement for age limit is
communicated, in case the employee would not have applied for retirement the employment
relationship could not be terminated. Since according to the Law no. 19/2000 on the public
system of pensions, the application for retirement may be submitted only by the employee, the
termination of employment relationship on retirement could have been at employee’s discretion.
Having regard to this situation, the Labour Code stipulates employer’s right to dismiss the
employee who although cumulatively meets conditions of age and minimum period of
contribution did not applied for the retirement under the law’s provisions.
Employee’s dismissal may be ordered only in case the employee meets conditions of retirement
for age limit. The accomplishment of conditions for anticipated retirement or partially
anticipated retirement does not give the employer the right to dismiss the employee.

The employer may dismiss the employee only with the observance of the term and other
procedural requirements set by the Labour Code.
The preliminary evaluation procedure. The employer may dismiss the employee for being
professionally unfit only after having completed the preliminary evaluation procedure. The
preliminary evaluation procedure is stipulated by the labour collective agreement concluded at
the national level or applicable labour collective agreement concluded at the level of the branch
of activity, as well as by the company’s rules and regulations.
Under the Collective labour agreement concluded at the national level, applicable for all the
employers in the country, employee’s evaluation is carried out by a commission designated by
the employer. One of the members of this commission is a representative of the trade union
whose member the employee is. The commission is obliged to invite the employee in writing,
stating the date, time, and place of the meeting and the modality of evaluation.
The evaluation must concern only the attributions listed within the employee’s job description. In
case of operation of new technologies, the evaluation may be related to such technologies only if
the employee was trained in the specific area.
If the employee has been appreciated as being professionally unfit to his/her job he/she may
contest the commission’s decision and if, following its re-examination, the decision is
maintained the employer may issue the dismissal decision that must specify the result of the
evaluation procedure and communicate it to the employee.
Employer’s obligation to offer the employee a vacant position within the company. The employer
is obliged to offer to the employee whose individual labour contract is terminated a vacant
position in the company, consistent with his/her professional training or, as the case may be,
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August 2006
his/her work capability assessed by the competent physician, under article 64 of the Labour
Code, in each of the following situations:
a) In case the employer intends to dismiss the employee due to the fact that, following a
decision of the competent medical investigation authorities, it was 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.
b) In case the employer intends to dismiss the employee for being professionally unfit for
his/her job.
In any of the above mentioned situations, if there is a vacant position in the company consistent
with the employee’s professional training or, as the case may be, his/her work capability assessed
by the competent physician, the employer is obliged to offer it to the employee.
The employer is obliged to offer him/her a vacant position under the provisions of the Labour
Code before the issuance of the dismissal decision. If the employer has such vacant position in
the company but he does not observe this obligation the dismissal decision in null and void. The
employee has at his/her disposal a period of 3 working days from the employer's communication
to state in writing his/her consent concerning the new job offered. If the employee does not state
his/her consent within the period stipulated, as well as if he/she refuses the employer’s offer, the
employer can order the employee’s dismissal. If the employee accepts the employer’s offer
he/she cannot be dismissed and his/her individual labour contract is modified by both parties’
agreement.
If the employer has no vacant positions in the company consistent with employee’s professional
training or, as the case may be, his/her work capability assessed by the competent physician, he
is obliged to ask the territorial employment agency for support in the redeployment of the
employee according to his/her professional training and/or, as the case may be, to his/her work
capability assessed by the competent physician. The employer cannot order the dismissal if he
did not ask the territorial employment agency for such support in the redeployment of the
employee. If the employer does not observe this obligation the dismissal decision in null and
void.
Notice period. The aim of granting the notice period is to avoid the harmful consequences the
immediate termination of the individual labour contract could have on the employee by giving
him/her the possibility to have the time needed to look for a new job without loosing the wage
income.
In case the employer intends to dismiss the employee he is obliged to observe the notice period
in the following situations:
a) If, following a decision of the competent medical investigation authorities, it was
prevents the latter from accomplishing the duties related to his/her work place.
b) If the employee is professionally unfit for his/her job.
As an exception, the employee dismissed for being professionally unfit for his/her job does not
benefit from the notice period if the dismissal is ordered during the probationary period.
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August 2006
According to the Labour Code, the duration of the notice period cannot be less than 15 working
days. The persons with disabilities have the right to benefit from a notice period of minimum 30
working days.
The dismissal decision must expressly mention the duration of the notice period the dismissed
employee benefits from.
It was unanimously agreed that the notice period does not represent a modification of the
duration of the individual labour contract. The open-ended individual labour contracts do not
become fixed term individual labour contracts. As well, the clause on the duration of the fixed
term individual labour contracts is not amended by the decision of employee’s dismissal if the
employee has the right to benefit from the notice period.
For the entire duration of the notice the individual labour contract shall continue to take full
effects. Thus, both parties must fulfil their contractual obligations. If, during the notice period,
the individual labour contract is suspended, the notice period shall be suspended accordingly
excepted being the situations of unjustified absences of the employee.
Term of issuance of the dismissal decision. The employer must issue the dismissal decision
within a term of 30 calendar days from the date of establishing the dismissal cause in case he
intends to dismiss the employee on one of the following reasons:
a) The employee is taken into preventive custody for a period exceeding 30 days, under the
rules of criminal procedure.
b) Following a decision of the competent medical investigation authorities, it was
prevents the latter from accomplishing the duties related to his/her work place.
c) The employee is professionally unfit for his/her job.
The dismissal decision is null and void if it is issued after the expiration of the term within which
it should have been ordered.
If the employer dismisses the employee who cumulatively meets conditions of age and minimum
period of contribution and did not apply for the retirement under the law’s provisions, the
dismissal decision may be issued any moment after the date the employee meets the retirement
for age limit conditions, but only before he/she applies for retirement. In case the employee
applies for retirement the employer does not have the rights to dismiss him/her anymore.
However, the employment relationship will be de jure terminated on the date the retirement
decision will be communicated.
Written form and content of the dismissal decision. According to article 62 (2), the employer is
obliged to issue the dismissal decision in writing. As well, the dismissal decision must be
motivated de facto and de jure and comprise details about the period within which it can be
contested and the law court where the complaint may be lodged. According to article 74 of the
Labour Code the dismissal decision must also contain the notice period and 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 of the Labour Code. The dismissal decision not issued in
writing or not containing the elements expressly listed by the Labour Code is null and void.
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August 2006
This solution imposed by the Labour Code’s provisions is too formalistic. The dismissal decision
should not be declared as null and void in case it does not contain the duration of the notice
period if the employer complied with the provisions of the Labour Code, applicable collective
labour agreement or individual labour contract to grant to the employee the notice period. Such
comments have not been taken into account on the occasion of the recent amendment of the
Labour Code.

The Labour Code does not fix a term within which the employer must communicate to the
employee the dismissal decision. However, the date of communication is very important since
this is the moment of calculation of the term of 30 calendar days within which the dismissed
employee may contest the dismissal decision before the competent law court.

In case the employer is not obliged to observe a notice period, the employment relationship is
terminated as effect of the dismissal ordered by the employer from the date of its communication
or from the date expressly mentioned within the dismissal decision if this date is subsequent to
the date it has been communicated. If the employer is obliged to observe a notice period, the
employment relationship is terminated on expiry of such notice period.
In case the employee is dismissed for reasons related to his/her person, under the Romanian
legislation there is no entitlement to severance payments unless agreed by the parties within the
applicable labour collective agreements, individual labour contracts or employment termination
agreements. The Labour Code only stipulates that in case of dismissal due to employee’s
physical unfitness and/or mental incapacity, the employee shall benefit from compensation,
under the terms set in the applicable collective labour contract or in the individual labour
contract, as the case may be.
The employee is not entitled to unemployment benefits granted by the unemployment insurance
system unless he/she is dismissed for being professionally unfit for his/her job or for his/her
physical unfitness and/or mental incapacity ascertained by decision of the competent medical
investigation authorities.
The dismissal for reasons related to employee’s person does not affect the rights the employees
have within the retirement pension systems or sickness insurance systems. Moreover, one of the
dismissal reasons is the accomplishment of conditions of retirement for age limit if the employee
did not applied for the retirement under the law’s provisions.
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August 2006
(4) Remedies
If the employee was dismissed for reasons not related to his/her person, he/she may contest the
dismissal as being unlawful or ill-grounded to the court for labour and social affairs within a
term of 30 days from the date the dismissal has been communicated to him/her. The trade union
may act on the behalf of the employee, unless the employee either opposes or renounces. In such
cases, the trade union does not need a power-of-attorney. The burden of proof rests with the
employer.


If the competent law court appreciates the dismissal as being either unjustified or ill-grounded or
ordered with non-observance of any of the procedural requirements stipulated by the law the
court must pronounce 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. However, the law court may pronounce the reinstatement of the
employee only on employee’s express request.
(7) Penalties

Labour collective agreements cannot breach the imperative provisions of the Labour Code either
by stipulating additional grounds for dismissal or by derogation from the procedural
requirements. Such collective agreements may stipulate additional rights for the dismissed
employees.
Thus, the Collective labour agreement concluded at the national level stipulates that in all cases
when the employer is obliged by the law to grant to the employee he intends to dismiss a notice
period, the duration of such notice period will be of 20 working days. According to article 241
(1) d) of the Labour Code and article 11 (1) d) of Law no. 130/1996 on collective labour
agreements, the clauses of the collective labour agreement concluded at the national level apply
for all the employees hired by all the employers in the country. Since the law’s provisions have a
minimal character, the applicable collective labour agreements or individual labour contracts
may stipulate a longer duration for the notice period.
The Collective labour agreement concluded at the national level also stipulates that during the
notice period the employee has the right to be absent from the job 4 hours a day out of the
working time in order to look for a new job benefiting from the entire wage that corresponds to
his/her full working time.
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August 2006
Labour collective agreements may also stipulate compensations for the employees dismissed.
The Collective labour agreement concluded at the national level stipulates that in case of
employee’s dismissal for reasons that cannot be imputed to him/her the employer is obliged to
pay him/her a compensation of 50% of his/her monthly salary in addition to any other payments
that employee is entitled to. Collective labour agreements concluded at inferior levels may
provide for increased compensations.
6. Dismissal for reasons not related to the employee’s person

Article 65 of the Labour Code stipulates the termination of the individual labour contract, caused
by the suppression of that employee’s position due to economic difficulties, technological
changes, or activity reorganisation14.
The dismissal for reasons not related to the employee's person can be individual or collective.
Thus, the employee may be dismissed in case his/her position is suppressed. The dismissal is
decided for reasons not related to the employee’s person due to the fact it is determined by
economic difficulties, technological changes, or activity reorganisation, situations that are not
related to the employee’s behaviour or deeds.
The employee’s dismissal on such reasons must be made with the observance of the following
conditions:
a) the suppression of the employee’s position must take place as a consequence of economic
difficulties, technological changes, or activity reorganisation;
b) the suppression must be effective and have an actual and serious cause from among those
expressly stipulated by the Labour Code: economic difficulties, technological changes, or
activity reorganisation;
c) employee’s dismissal may be determined only by the suppression of his/her own position.
a) The suppression of the employee’s position must take place as a consequence of economic
difficulties, technological changes, or activity reorganisation. Thus, it is possible for the
employer to face economic difficulties and, by consequence, to be obliged to reduce costs,
including salary costs and/or reduce its activity by suppressing those positions corresponding to
the activities that are not necessary anymore.
As well, in case the employer puts into service new technological means, apparatus, tools,
replacing employees’ work with the activity of such machines, the positions corresponding to the
activities that are not necessary anymore will be suppressed.
14
The proposed amendment of the Labour Code by means of a Governmental Emergency Ordinance published on
31st of July 2006 on the website of the Romanian Ministry of Labour, Social Solidarity and Family, stipulates that
the dismissal for reasons not related to the employee’s person represents the termination of the individual labour
contract, caused by the suppression of that employee’s position due to some reasons not related to his/her person.
The suppression of the employee’s position must be effective and have an actual serious cause. According to the
amendment proposed, the limitation of the causes of the suppression of employee’s position to “economic
difficulties, technological changes, or activity reorganisation” is to be removed from the text.
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August 2006
Finally, the employer may get through a reorganisation process. The Labour Code does not
provide a definition of the reorganisation. It may be the case of a merger or division, a
modification of the company’s form, an internal act of getting the activity more efficient and
modifying the list of the positions within the company.
b) The suppression of the employee’s position must be effective and have an actual and serious
cause from among those expressly stipulated by the Labour Code.
In order to find out if there is an effective suppression of employee’s position it is necessary to

verify the list of positions within the company. The suppression is not effective if it was followed
within a short period of time by the reestablishment of the same position. As well, the
modification of the position’s denomination cannot be held as an effective suppression of that
position.
The cause of the suppression of employee’s position – economic difficulties, technological

changes, or activity reorganisation – must be actual and serious. Thus, the suppression of
employee’s position and, by consequent, his/her dismissal may be actually determined only by
one of these reasons. The cause of the suppression of employee’s position could never be the
dismissal of the employee.
c) Employee’s dismissal may be determined only by the suppression of his/her own position.
The employee’s dismissal is not legal in case his/her position is not suppressed, even if the
employer decides the suppression of some identical or similar positions.

The employer may dismiss the employee only with the observance of the procedural
requirements set by the Labour Code.
Notice period. In case the employer intends to dismiss the employee for reasons not related to
his/her person, following the suppression of his/her position due to economic difficulties,
technological changes, or activity reorganisation, the employer is obliged to observe the notice
period.
According to the Labour Code, the duration of the notice period cannot be less than 15 working
days. The persons with disabilities have the right to benefit from a notice period of minimum 30
working days. The dismissal decision must expressly mention the duration of the notice period
the dismissed employee benefits from.
For the entire duration of the notice the individual labour contract shall continue to take full
effects. Thus, both parties must fulfil their contractual obligations. If, during the notice period,
the individual labour contract is suspended, the notice period shall be suspended accordingly
excepted being the situations of unjustified absences of the employee.
Term of issuance of the dismissal decision. The employer is not obliged to observe a maximum
term is case of dismissing an employee following the suppression of his/her position due to
economic difficulties, technological changes, or activity reorganisation.
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August 2006
Written form and content of the dismissal decision. According to article 62 (2) of the Labour
Code, the employer is obliged to issue the dismissal decision in writing. As well, the dismissal
decision must be motivated de facto and de jure and comprise details about the period within
which it can be contested and the court where the complaint may be lodged. Although this text is
located within the chapter and section concerning the dismissal for reasons related to employee’s
person, there is unanimously accepted that it is also applicable in case of dismissal for reasons
not related to employee’s person.
For all the dismissal cases, article 74 of the Labour Code stipulates that the dismissal decision
must also contain the following elements:
a) the reasons for the dismissal;
b) the notice period;
c) the criteria for establishing the priority sequence, only in case of collective dismissals;
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 of the Labour Code.
The dismissal decision not issued in writing or not containing the elements expressly listed by
the Labour Code is null and void.

The Labour Code does not fix a term within which the employer must communicate to the
employee the dismissal decision. However, the date of communication is very important since
this is the moment of calculation of the term of 30 calendar days within which the dismissed
employee may contest the dismissal decision before the competent law court.
(3) Specific requirements for collective dismissals

The previous Labour Code, Law no. 10/1972, did not make any reference to collective
dismissals. Collective dismissals have been regulated for the first time in the Romanian
legislation in 1997. Before the date of the enforcement of the present Labour Code in the area of
collective dismissals the provisions of Governmental Emergency Ordinance no. 98/1999
concerning the social protection of the persons whose individual labour contracts are terminated
as a result of collective dismissals were applicable. The present Labour Code, Law no. 53/2003
overtook all the general provisions on collective dismissals.
The provisions of the present Labour Code took into account Directive 98/59/CE on collective
dismissals. The Labour Code gives a definition of the collective dismissals and stipulates
employer’s obligations and the procedure to be followed in case of a collective dismissal. These
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August 2006
provisions are applicable to any employer when the dismissals ordered correspond to the notion
of a collective dismissal.
According to article 68 of the Labour Code, collective dismissal means15 the dismissal, within 30
calendar days, ordered for one or more reasons of those stipulated under article 65 (1) -
economic difficulties, technological changes, or activity reorganisation, of:
a) at least 10 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.
The text does not make any difference between employees having open-ended individual labour
contracts and employees having fixed term individual labour contracts.
Before ordering collective dismissals the employer has the following obligations, stipulated by
articles 69 to 71 of the Labour Code:
a) With a view to reaching an agreement, to start 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 consequences16.
b) 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.
c) To notify in writing the trade union or, as the case may be, the employees’
representatives of his intent of collective dismissal, at least 30 calendar days before the
issuance of the dismissal decisions17.
The notification of the collective dismissal intent must comprise:
- the total number and categories of employees;
- the reasons for the dismissal;
- the number and categories of employees to be affected by the dismissal;
- the criteria envisaged, according to the law and/or collective labour contracts, for
establishing the dismissal priority sequence;
- the steps considered for limiting the number of dismissals;
15
According to the amendment of the Labour Code by means of a Governmental Emergency Ordinance proposed
and published on 31st of July 2006 on the website of the Romanian Ministry of Labour, Social Solidarity and Family,
for the purpose of calculating the number of the employees collectively dismissed there shall also be taken into
consideration the employees whose individual labour contracts have been terminated by mutual agreement of the
parties, on employer’s proposal, provided that there are at least 5 such employees
16
According to the amendment proposed, such consultations must be initiated by the employer in good time and
must also concern ways and means of mitigating the consequences by recourse to accompanying social measures
aimed, inter alia, at aid for redeploying or retraining employees dismissed.
17
The amendment proposed states that in view to enable trade union or employees’ representatives to make
constructive proposals, the employer is obliged during the course of the consultations to notify in good time in
writing relevant information, without mentioning a certain time limit. Moreover, the proposal provides that the
obligations of information and consultations shall apply irrespective of whether the decision regarding collective
dismissals is being taken by the employer or by an undertaking controlling the employer. If the decision regarding
collective dismissals is being taken by an undertaking controlling the employer, in considering alleged breaches of
such obligations, account shall not be taken of any defence on the part of the employer on the ground that the
necessary information has not been provided to the employer by the undertaking which took the decision.
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August 2006
- 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;
- the date on which or the period during which the dismissals shall take place;
- 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.
d) To reply, in writing and stating good reasons, to the proposals formulated by the trade
union or, as the case may be, the employees’ representatives, within 5 calendar days of
their receipt. These proposals may be formulated by the trade union or, as the case may
be, the employees’ representatives within 15 calendar days of the date of receipt of the
dismissal project and may refer to some steps for avoiding the dismissals or diminishing
the number of employees dismissed18.
e) To 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.
If the aspects related to the collective dismissal under consideration cannot be solved
until the date of issuance of the dismissal decisions, at the request of either party, the
territorial labour inspectorate may order the postponing of the dismissal decisions’
issuance date by 10 calendar days at the most19.
The employer who ordered collective dismissals cannot employ any persons for the positions of
the employees dismissed for a period of 9 months from the date of their dismissal. If, during this
period, the employer resumes the activities the termination of which had led to collective
dismissals, he is obliged to communicate this situation in writing to the employees dismissed, as
well as to re-employ them in the positions they had had previously, without an examination,
contest, or probationary period. The employees entitled to be re-employed have at their disposal
a term of maximum 10 working days to communicate in writing to the employer their consent
regarding the position offered. The employer shall be entitled to employ new people for the
18
The amendment proposed reduces the term within which the trade union or, as the case may be, the employees'
representatives may propose to the employer steps for avoiding the dismissals or reducing the number of employees
dismissed, to 5 calendar days of the date of receipt of the notification..
19
The amendment proposed adds some elements to the procedure of collective dismissals, in accordance with the
Directive 98/59/CE. Thus, if following the consultation procedure the employer decides to order collective
redundancies, he is obliged to notify in writing the territorial labour inspectorate and the territorial employment
agency, at least 30 calendar days before the issuance of dismissal decisions, by mentioning all relevant information
concerning the projected collective dismissals and the consultations with the trade union or, as the case may be, the
employees' representatives, and particularly the reasons for the dismissals, the total number of employees, the
number of employees to be dismissed, and the date on which or period over which the dismissals are to be effected.
On the same date, employers shall forward to the trade union or, as the case may be, the employees' representatives
a copy of the notification. The trade union or, as the case may be, the employees' representatives may send any
comments they may have to the territorial labour inspectorate. Upon motivated request of any of the parties, the
territorial labour inspectorate may reduce the period provided, having the obligation to inform in good time the
employer and the trade union or, as the case may be, employees’ representatives of such reduction and the grounds
for it. During the period between the notification and the issuance of the dismissal decisions, the territorial
employment agency shall seek solutions to the problems raised by the projected collective dismissals. When the
problems cannot be solved within the initial period, upon motivated request of any of the parties, the territorial
labour inspectorate may postpone the date of issuance of the dismissal decisions for maximum 10 calendar days,
having the obligation to inform in writing the employer and the trade union or, as the case may be, employees’
representatives of such postponement and the grounds for it, before expiry of the initial period.
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August 2006
vacant positions only if the employees entitled to be re-employed do not communicate in writing
their consent within the term provided by the Labour Code or refuse the position offered.

The employment relationship is terminated as effect of the dismissal ordered by the employer on
expiry of the notice period the employer is obliged to observe.
In case the employee is dismissed for reasons not related to his/her person, under the Romanian
legislation there is no entitlement to severance payments unless agreed by the parties within the
applicable labour collective agreements, individual labour contracts or employment termination
agreements. According to the Labour Code, the employees dismissed for reasons not related to
their persons – as a consequence of the suppression of that employee’s position due to economic
difficulties, technological changes, or activity reorganisation have the right to benefit from active
measures to control unemployment within the system of unemployment insurance and
compensations under the terms stipulated by the law and the applicable collective labour
agreement. The employees dismissed within collective dismissals ordered under the conditions
of some special laws may benefit from specific compensations paid, as a rule, from the budget of
unemployed insurance.
The employee is entitled to unemployment benefits granted by the unemployment insurance

system. The payment of unemployment benefit is suspended during the period the dismissed
employee is entitled to receive compensations from the budget of unemployment insurance,
under the conditions of some special laws.
The dismissal for reasons related to employee’s person does not affect the rights the employees
have within the retirement pension systems or sickness insurance systems.
(5) Remedies
If the employee was dismissed for reasons not related to his/her person and he/she appreciates
that the dismissal either did not have a real and serious reason from among those stipulated by
the Labour Code or it was ordered with non-observance of the procedural requirements, he/she
may contest the dismissal as being ill-grounded or unlawful to the court for labour and social
affairs within a term of 30 days from the date the dismissal has been communicated to him/her.
The trade union may act on the behalf of the employee, unless the employee either opposes or
renounces. In such cases, the trade union does not need a power-of-attorney. The burden of proof
rests with the employer.

However, according to the Labour Code, if the aspects related to the collective dismissal under
consideration cannot be solved until the date of issuance of the dismissal decisions, at the request
of either party, the territorial labour inspectorate may order the postponing of the dismissal
decisions’ issuance date by 10 calendar days at the most.
40
August 2006

If the competent law court appreciates the dismissal as being either unjustified or not grounded
on a real and serious reason stipulated by the Labour Code or ordered with non-observance of
any of the procedural requirements ordered with non-observance of prohibitions stipulated by the
law the court must pronounce 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. However, the law court may reinstate the employee only on his/her
express request.
(8) Administrative or criminal penalties


The Collective labour agreement concluded at the national level stipulates supplementary
obligations for all the employers in the country who intend to dismiss employees following
suppression of their jobs determined by the reduction of activity or operation of new
technologies. Such employers are obliged to inform trade unions about the possible measures for
redeployment of employees concerned, change of work program, professional training or re-
qualifying courses and to analyze trade unions’ proposals. In case the dismissals cannot be
avoided, the employer is obliged to inform in writing each employee concerned if he offers
him/her a vacant position within the company or a professional re-qualifying program in view of
redeploying him on another position. Only if the employee refuses employer’s offer he/she can
be dismissed. This Collective labour agreement applicable for all the employers in the country
also stipulates the priority sequence in case of employees’ dismissal for economic reasons.
The Collective labour agreement concluded at the national level stipulates that in all cases when
the employer is obliged by the law to grant to the employee he intends to dismiss a notice period,
the duration of such notice period will be of 20 working days. Since the law’s provisions have a
minimal character, the applicable collective labour agreements or individual labour contracts
may stipulate a longer duration for the notice period.
As well, the Collective labour agreement concluded at the national level stipulates that during the
notice period the employee has the right to be absent from the job 4 hours a day out of the
working time in order to look for a new job benefiting from the entire wage that corresponds to
his/her full working time.
According to the Labour Code, the employees dismissed for reasons not related to their person
may benefit from increased compensations in case the applicable labour collective agreement or
the individual labour agreement provides such compensations. Article 76 of the Collective labour
agreement concluded at the national level stipulates that in case of employee’s dismissal for
reasons that cannot be imputed to him/her the employer is obliged to pay him/her a
compensation of 50% of his/her monthly salary in addition to any other payments that employee
41
August 2006
is entitled to. Collective labour agreements concluded at inferior levels may provide for
increased compensations.
(10) Special arrangements

Under the Romanian labour legislation there are no special rules for the dismissal on economic
reasons in case of employer’s insolvency. Dismissal of any employee must be made with the
observance of the substantive and procedural requirements stipulated by the Labour Code. In
case the undertaking goes bankrupt the individual labour contracts of all the employees in the
undertaking are de jure terminated on the date the legal entity ceases to exist following its
dissolution (see chapter IV above, point 2.3).
The transfer of an undertaking20 does not affect the continuation of the employment relationships
of the workers. The new owner takes the place of the previous owner with regard to the rights
and obligations related to the employment relationships. If the new owner intends to reduce the
number of workers for economic treasons, he has to follow the procedures concerning the
dismissal for reasons not related to the employee’s person. The transfer of the undertaking
cannot represent itself a reason for employees’ dismissal.
In case of closure of the business the individual labour contracts of all the employees in the
undertaking cease by the effect of the law (de jure termination, see chapter IV above, point 2.3).
The termination of employment relationship as an effect of employee’s dismissal may occur only
before the date the legal entity ceases to exist following its dissolution. Such dismissal must be
ordered with the observance of the substantive and procedural requirements stipulated by the
Labour Code.
20
Articles 169 and 170 of the Labour Code and Law no. 67/2006 concerning the protection of employees’ rights in
the event of a transfer of the undertaking, of the unit or of parts thereof (Official Bulletin of Romania no. 276 of 28th
of March 2006).
42
August 2006
IV. Termination of employment relationship by employee’s initiative - resignation

Under the previous Labour Code, employee’s right to resignation was expressly stipulated,
together with his/her obligation to respect a notice period. At present, the Labour Code in force
offers a more detailed regulation of employee’s right to resignation.
Employee’s right to resign is an expression of his/her freedom of work. However, in view to

equilibrate both parties positions and interests, and taking into account that an immediate
termination of employment relationship by employee’s will could harm employer’s interests, the
legislator always stipulated employee’s obligation to observe a notice period, so that the effects
of the individual labour contract could cease only following a minimum period from the date the
employee communicated to the employer his/her resignation.
Article 55 c) of the Labour Code in force states that the individual labour contract may be
terminated as a result of the unilateral will of one of the parties, in the cases and under the terms
limitedly stipulated by the law. Grounded on this provision, article 79 of the Labour Code
stipulates the rules applicable in case of employee’s resignation.
As an exception, according to article 31 (4¹) of the Labour Code, as amended by Governmental

Emergency Ordinance no. 65/2005 approved by Law no. 371/2005, during the probationary
period or at the end of this period the individual labour contract may be terminated by any of the
contractual parties’ will under the only condition to communicate (notify) his/her will in writing
to the other contractual party. Thus, it appears that the party who intends to terminate the
employment relationship is not obliged to observe a notice period.
The text as amended is not clear enough to remove the applicability of any of the rules in case of
resignation and there was not enough time yet to create relevant jurisprudence.

According to article 79 of the Labour Code, resignation means the unilateral act of will of the
employee who, by means of a written notification, informs the employer about the termination of
the individual labour contract, after the notice period has elapsed.
The employee has the right not to motivate his/her resignation, but he/she is obliged to observe
the notice period settled by the law or by the collective or individual labour contract, as the case
may be.
As an exception, the employee can resign without notice if the employer has not met his
obligations according to the individual labour contract. However, employee’s resignation does
not prevent him/her from demanding the employer for fulfilment of his contractual obligations.
As well, as above mentioned, the employee can resign without notice during the probationary
period or, as the case may be, at the end of this period.
Any individual labour contract may be terminated by employee’s resignation, independently if it

is an open-ended or a fixed term contract. In all cases the same rules are applicable. There are no
specific provisions in case of termination of a fixed term individual labour contract by
43
August 2006
employee’s resignation. However, the resignation must be forwarded as to produce its effects
before the date the labour contract would have been expired.
(3) Desertion of the post

If the employee does not appear at his workplace or leaves it his/her attitude cannot be regarded
as tacit resignation. The employee’s intention to terminate the individual labour contract must be
unambiguous.
However, desertion of the post may be considered as a breach of the individual labour contract
and, by consequent, may represent reason for the employer to apply a disciplinary sanction to the
employee. If, according to the applicable collective labour agreement or, as the case may be,
employer’s internal rules the employee’s absence represents a serious infraction of discipline,
he/she may be dismissed on disciplinary grounds with the observance of the procedural
requirements provided by the Labour Code.

Employee’s resignation is given by means of a written notification. However, the written form of
such notification has probative role since the employer's refusal to register the resignation shall
give the employee the right to prove it by any elements of proof.
The employee is obliged to communicate his/her resignation to the employer otherwise the
resignation could not produce its effects.
According to the Labour Code, the notice period cannot exceed 15 calendar days for employees
in executive positions, or 30 calendar days for employees in management positions, respectively.
For each employee, the notice period is the one agreed upon by the parties in the individual
labour contract. In case there is no such provision in the individual labour contract, the notice
period is the one stipulated in the applicable collective labour contracts. The clauses of the
individual and collective labour contracts must observe the maximum limits settled by the
Labour Code. In absence of any contractual clause on the duration of the notice period the
maximum limits fixed by the Labour Code will be applicable.
The notice period is to be counted from the date the employee informs the employer about
his/her will to terminate the individual labour contract. It was unanimously agreed that in such
cases the open-ended individual labour contracts do not become fixed term individual labour
contracts and the clause on the duration of the fixed term individual labour contracts is not
amended by employee’s resignation.
The Labour Code stipulates that for the duration of the notice the individual labour contract shall
continue to take full effects. If, during the notice, the individual labour contract is suspended, the
notice period shall be suspended accordingly.
(5) Effects of the resignation

The resignation produces its effects independently of employer’s agreement or refusal. The
individual labour contract is terminated as a consequence of resignation on the date of expiry of
44
August 2006
the notice period or on the date the employer gives up that term entirely or partially, since the
notice period is stipulated in employer’s benefit.
In case the employee resigns he/she is not entitled to severance payments. As well, the employee
is not entitled to unemployment benefits granted by the unemployment insurance system.
Employee’s resignation does not affect the rights he/she has within the retirement pension
systems or sickness insurance systems.
(6) Remedies
Taking into account that the Romanian legislation does not stipulate substantive conditions for
employees’ resignation, such decision cannot be contested by the employer. If the employee does
not observe the notice period, the employer has the right to sanction him or, as the case may be,
dismiss him on disciplinary reasons. In this case, the dismissal decision may be contested by the
employee.
On the other side, the employee may claim that his/her consent was vitiated and, by consequent,
may ask to the competent court the cancellation of his/her resignation, the rules of the civil law
being applicable.
Finally, withdrawal of employee’s resignation is subjected to the rules of civil law. Thus, the
employee could withdraw his/her resignation only before his/her resignation reaches the
employer. In case the resignation reached the employer the employee cannot come back on
his/her decision. The employee could withdraw his/her resignation only under the condition of
getting employer’s express or tacit, but unambiguous, agreement.
(7) Compensation of the employer

Under the Romanian legislation, the employer is not entitled to compensation.
(8) “Contrived” resignations

The concept of “contrived resignation” is unknown under the Romanian legislation.
(9) Resignation for proper cause

The employee who resigns is not obliged to observe the notice period if the employer has not
met his obligations according to the individual labour contract. However, this situation is not
regarded by the Labour Code as “proper cause” of resignation since the Labour Code does not
mention any cause for resignation.

Labour collective agreements may provide for shorter notice periods. Employees’ rights granted
by the Labour Code cannot be diminished by collective labour agreements.
45
August 2006
VII. General questions relating to all forms of termination of employment relationships
(1) Non-competition agreements

According to the Romanian Labour Code, either on conclusion of the individual labour contract
or during the period the contract is in force the parties may negotiate and provide within the
contract a non-competition clause. By such clause, from the moment his/her employment
relationship is terminated the employee is obliged to refrain from performing, for his/her own
interest or that of a third party, an activity which is competing with the one performed for his/her
employer and forces the employer to pay a monthly allowance to the employee during the entire
period of non-competition. The maximum period of non-competition is 2 years from the date the
individual labour contract has been terminated.
The non-competition clause may take effect only if the individual labour contract clearly
stipulates:
- the activities prohibited to be performed by the employee from the date the individual
labour contract is terminated. However, the non-competition clause cannot have as effect
the employee's absolutely prohibition from exercising his/her profession or
specialization.
- the amount of the monthly non-competition allowance. The monthly non-competition
allowance is of at least 50% of the average of wages the employee is entitled to for the
last 6 months of employment.
- the period for which the former employee has the obligation of non-competition,
- the third-parties for whom the former employee cannot perform the activities specified,
- the geographical area within which the former employee could be in real competition
with the former employer.
Based on a notification by the employee or the territorial labour inspectorate, the competent
court of law can diminish the effects of the non-competition clause.
In the event of the employee having wrongly violated the non-competition clause, he/she can be
obliged to return the allowance and, as the case may be, pay damages corresponding to the loss
caused by him/her to the employer.
The non-competition clause does not have effects if the employment relationship is terminated
on the initiative of the employer, for reasons not related to the employee’s person (economic
reasons). As well, such clause cannot take effects in case the employment relationship is de jure
terminated as a result of the death, declaration of death or placing under interdiction of the
employee or employer (if he/she is a natural person), dissolution of the employer (if this is a
legal entity), finding the absolute nullity of the individual labour contract, interdiction to exercise
a profession or to perform a job, as a safety measure or complementary punishment, withdrawal
of the parents’ or legal representatives’ consent, for employees whose ages range between 15 and
16 years.
(2) Agreements to the effect that the employee will not terminate the contract during a certain
period
Such agreements appear as being unlawful under the Romanian legislation since having as effect
the limitation of the freedom of work granted by the Constitution.
46
August 2006
The only situation when the Labour Code provides the possibility to conclude such agreements is
the vocational training of the employee on employer’s expenses. Thus, according to the Labour
Code, the employees who have benefited from a vocational training course or period exceeding
60 days shall not be allowed to request the termination of the individual labour contract for a
period of at least 3 years from the date of graduation of the vocational training courses or period.
The duration of the employee's obligation to work for the employer who covered the expenses
incurred for the vocational training, as well as any other aspects related to the employee's
obligations, subsequent to the vocational training, are to be set up in a rider to the individual
labour contract.
However, this is not an absolute interdiction. In case the employee does not comply with such
provision he/she is obliged to cover all the expenses incurred for his/her vocational training, in
proportion to the period not worked from the period established according to the rider to the
individual labour contract. This obligation also applies to employees who have been dismissed
during the period established in the rider, for disciplinary reasons, or whose individual labour
contract has ceased due to them being taken into preventive custody for a period exceeding 30
days, being sentenced by means of a judgment, which was final, for an offence related to their
job, as well as if a criminal court has placed on him/her a temporary or permanent interdiction to
exercise his/her profession.
(3) The issuing of a reference

The Romanian legislation does not provide the obligation of the employer to issue a reference to
the employee on termination of his/her employment relationship.
However, according to the Labour Code, the employer can request information about the person
applying for a job from his/her former employers, but only as regards the duties carried out and
the length of that employment, and provided the person in question has been informed in
advance. On the other side, the employer is obliged to issue, at the employee’s request, a
document attesting his/her activity, length of service in his/her profession and specialization.
(4) Full and final settlement

The Romanian labour legislation does not stipulate the possibility of full and final settlement.
Only the competent law court may settle a conflict by means of a final decision.
Moreover, according to the Labour Code, employees cannot give up the rights recognized by the
law. Any transaction whose aim is to give up the rights recognized by the law to employees or to
limit such rights shall be rendered void.
Concerning employee’s rights negotiated and stipulated within collective labour agreements and
individual labour contract any amendment thereto may be enforced by parties’ mutual
agreement.
Usually the employee signs at the end of the employment relationship a document of liquidation
of debts (fişa de lichidare). However, this signature does not mean that the employee
relinquishes any of his rights and it does not constitute renouncement of the employee of any
possible claim on the employer.
47
August 2006
ANNEX
Termination of the employment relationships during the probationary periods
In view to check the abilities of the employee, on the conclusion of the individual labour contract
there may be established, a trial period of 30 calendar days at the most for executive positions,
and 90 calendar days at the most for management positions. The check of professional abilities
when employing disabled persons shall be based only on a trial period of 30 calendar days at the
most. As far as unskilled workers are concerned, the trial period shall be exceptional and shall
not exceed 5 working days. Higher-education graduates shall be employed, at the beginning of
the employment in their profession, based on a trial period of maximum 6 months.
During the trial period, the employee enjoys all the rights and has all the obligations stipulated in
the labour legislation, the applicable collective labour contract, the company's rules and
regulations, as well as the individual labour contract.
During the performance of an individual labour contract, there can be only one trial period. As an
exception, an employee can be subjected to a new trial period if he/she starts a new position or
profession with the same employer, or is to perform his/her activity in a work place under
difficult, harmful, or dangerous conditions. Moreover, it is prohibited to successively employ
more than three persons for trial periods for the same position.
If the employer fails to inform the employee, before the conclusion or amendment of the
individual labour contract, about the trial period, he will not be entitled to check the employee’s
abilities by such means.
On the occasion of the amendment of the Labour Code in force by Governmental Emergency
Ordinance no. 65/2005 approved by Law no. 371/2005, the discussions between the
representatives of the employers and employees about the necessity to give more flexibility to
the employment relationships were taken into account. Thus, the rules applicable to the
probationary period were amended by introducing paragraph (4¹) to article 31 stating that during
the probationary period or at the end of this period the individual labour contract may be
terminated by any of the contractual parties’ will only by means of a written notification
communicated to the other party. The representatives of the employers and employees, as well as
the legislator intended that any other formalities and rules provided by the Labour Code in case
of resignation or dismissal (included being the notice period) to become not applicable during the
entire duration of the probationary period.
However, the text as amended is not clear enough to remove both conditions of existence of one
of the grounds of dismissal stipulated by the Labour Code and applicability of the formalities and
rules provided by the Labour Code in case of resignation or dismissal (included being the notice
period) for the entire duration of the probationary period. There was not enough time yet to
48
August 2006
create relevant jurisprudence. Since this derogatory provision concerning the termination of the
employment relationships during the probationary period or at the end of this period is very
recent21, a consistent case law developing the legal provision cannot be invoked.
21
Law no. 371/2005 approving the Governmental Emergency Ordinance no. 65/2005 on the amendment of Law no.
53/2003 – Labour Code (Official Bulletin of Romania no. 1147 of 19th of December 2005).
49

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Termination of Employment Relationships:

Legal situation in Romania

III. Termination of employment relationship by mutual agreement of the parties

V. Termination of employment relationship by employer’s initiative - dismissal

5. Dismissal for other reasons related to the employee’s person

6. Dismissal for reasons not related to the employee’s person

VI. Termination of employment relationship by employee’s initiative - resignation

(1) Evolution of legislation

(7) Compensation to the employer

VII. General questions relating to all forms of termination of employment relationships

ANNEX – Termination of the employment relationships during the probationary periods

(1) Constitutional provisions on the right to work

(2) International agreements and conventions

(3) Sources of law and their hierarchy

At present, the general legal framework for termination of employment relationships is

Rules on termination of employment relationships may also be provided by the company’s

(4) Role of judge-made law and custom

(1) Ways of terminating an employment relationship

(2) Exceptions or specific requirements

However, some specific provisions relating to termination of employment relationships depend

III. Termination of employment relationship by mutual agreement of the parties

(1) Evolution of legislation.

This modality of termination of the employment relationship is an expression of the freedom of

(2) Substantive conditions

(3) Procedural requirements

(4) Effects of the agreement

(5) Vitiating factors, remedies

(7) Collective agreements

(8) Relations to other forms of termination

(1) Evolution of legislation

(2) Cases/grounds of de jure termination

2.1. Death of employee or death of employer, if he/she is a natural person

2.3. Dissolution of the employer who is a legal entity

2.4. Communication of employee’s retirement decision

2.5. Acknowledgement of the absolute nullity of the individual labour contract

By consequent, in order to protect employees from unlawful or ill-founded dismissals, the

2.7. The employee is sentenced to serve a custodial penalty

2.9. Interdiction to exercise a profession or to perform a job

2.11. Withdrawal of the parents’ or legal representatives’ consent

(3) Procedural requirements

(4) Effects of the existence of a ground of de jure termination of employment relationship

In case of de jure termination of employment relationship by mutual agreement of the parties,

The employee is entitled to unemployment benefits granted by the unemployment insurance

(7) Collective agreements

V. Termination of employment relationship by employer’s initiative - dismissal

2. Overview of the legislation in force

3. Prohibition of employee’s dismissal

The situations when it is permanently or temporarily prohibited to the employer to dismiss

Prohibition of dismissals on discriminatory criteria is in concordance with the Romanian

Article 21 of the Governmental Emergency Ordinance no. 96/2003 on protection at work of

4. Dismissal on disciplinary grounds

(1) Substantive conditions

As a disciplinary sanction, employee’s dismissal is grounded on employee’s subordination to the

(2) Procedural requirements

Previous disciplinary inquiry. Following amendment of the Labour Code by Governmental

The jurisprudence stated as communication modalities: communication attested by employee’s

(3) Effects of dismissal

(5) Suspension of the effects of the dismissal

(6) Restoration of employment

(8) Collective agreements

5. Dismissal for other reasons related to the employee’s person

(1) Substantive conditions