Labour Law Newsletter No. 2/2013
Legislation
News on discrimination
Law no.189/2013 for the approval of Government Emergency Ordinance no.19/2013 for the amendment of Government Ordinance no. 137/2000 regarding the prevention and punishment of all the forms of discrimination has been published within the Official Gazette no.380 dated June 27, 2013.
These new legal provisions set forth the possibility for the party which have committed the deed of discrimination to be obliged to publish in mass-media a summary of the Council’s decision/court’s judgement.
The administrative sanction can be inflicted within a statute of limitations of 6 months, which does not start running as of the date the Discrimination Council has been referred to with the complaint, but as of the date the Discrimination Council has resolved the claim on discrimination.
Law no. 115/2013 for the approval of Government Emergency Ordinance no. 83/2012 for the amendment of Law no. 202/2002 regarding the equal chances and treatment between women and men has been published within the Official Gazette no. 240 dated April 25, 2013.
The new legal provisions set forth, amongst others, a higher statute of limitations in order to file a complaint based on sex discrimination. Thus, the new statute of limitations is increased from 1 year to 3 years starting the date when the discrimination deed has been perpetrated.
News on unemployment incentives granted to employers
Law no. 250/2013 for the amendment of Law no. 76/2002 on unemployment has been published within the Official Gazette no. 457 dated July 24, 2013.
The new legal provisions have reduced from 3 years to 18 months the period during which the employers that receive incentives for hiring graduates for undetermined period are obliged to maintain their employment.
Moreover, the new legal provisions have reduced from 2 years to 18 months the period during which the employers that receive incentives for hiring unemployed persons aged over 45 years old or single parents for indefinite period are obliged to maintain their employment.
In both of the abovementioned situations, the employers are no longer exempted from the payment of unemployment contributions to the state budget. However, they continue to be granted with an allowance amounting the social indicator (i.e., RON 500) for a period of 18 months, as opposed to the previous period of 3 years, respective 2 years.
The new legal provisions have extended from 3 to 5 years the period during which the employers can access an allowance from the unemployment state budget when hiring unemployed persons that will meet the conditions for specific types of retirement within the following 5 years.
Employers hiring young people exposed to the risk of being out casted shall be granted in certain conditions with a monthly allowance for every person in this category amounting the base salary of the respective person, without exceeding twice the social indicator (i.e., RON 1.000). Such allowance shall be reimbursed (along with legal interests) if the employer terminates the employment agreement prior to the term provided therein.
Government Emergency Ordinance no. 55/2013 for the provision of specific fiscal-budgetary measures as well as for the amendment of specific legal acts has been published within the Official Gazette no. 331 dated June 6, 2013.
According to the new provisions in force, the income tax for the salaries/allowances/severances paid, under the conditions set forth by the law, to employees having management position or to persons appointed as members of board of directors and management boards with the occasion of the termination of their employment or mandate will bear an exceptional quota of 85%, as opposed to the regular quota for the income tax of 16%.
However, Law no. 260/2013 for the approval of the E.O. no. 55/2013, in the form approved by the Constitutional Court by Decision no. 381/2013 and published within the Official Gazette no.620 dated October 4, 2013, has restricted the application of the exceptional quota of 85% only to salaries/allowances/severances paid upon the termination of the employment or mandate to the employees occupying management positions or to persons appointed as members in certain public authorities.
Case Law
News on the court’s capacity to replace the disciplinary sanction applied by the employer
Ruling no. 11/2013 of the Romanian Supreme Court of Justice on the referral in the interest of the law regarding the possibility of the courts of law to replace the disciplinary sanction applied by the employer has been published within the Official Gazette no. 460 as of 25th of July 2013.
The above mentioned ruling was adopted by the Supreme Court in view of rendering unitary the case-law divergences on this particular legal matter.
In this respect, after analyzing the two options encountered in the legal practice and the options presented by the Bucharest Court of Appeal management Committee and by the General Prosecutor, the Supreme Court ruled that the court of law having competency to rule in relation with a claim filed by an employee against the disciplinary sanction may replace the respective disciplinary sanction, if such is deemed as incorrectly individualized.
According to one orientation of the case law and to the arguments presented to the Supreme Court by the General Prosecutor, the employer does not have an absolute, exclusive disciplinary authority able to rule out the court’s competence to verify if the criteria set forth by the law when deciding a sanction were observed and if the sanction is correctly individualized. The fact that the court has the competence to replace the disciplinary sanction must not be viewed as an intrusion in the disciplinary authority of the employer, because its right to establish a disciplinary sanction ceases once the sanction is enforced. From that point forward the courts of law have the prerogative to perform the jurisdictional control over the sanctioning decision. Therefore, in the absence of a legal express limitation, the court can partially annul the employer’s decision, and the disciplinary sanction can be replaced in accordance with the gravity of the employee’s misconduct.
On the other hand, according to the other orientation of the case law and to the arguments presented to the Supreme Court by the Bucharest Court of Appeal management Committee, the enforcement of a disciplinary sanction is the exclusive prerogative of the employer and, therefore, the court should limit its control only to the legality and the grounds of the sanctioning decision. Another interpretation cannot be accepted, because it would mean that the court is substituting the employer.
In the Supreme Court’s view, the first of the above mentioned opinions is the correct one, given that if the court ruled only in order to determine the legality of the disciplinary measure without confining the circumstances that determined the respective sanction, the employee’s right of access to justice would be elusive. Thus, the employer would have the exclusive authority regarding the enforcement of the disciplinary criteria provided by the Labour Code, which could lead to abusive disciplinary sanctions. In this respect, the Supreme Court ruled that, by partially annulling the employer’s decision and replacing the disciplinary sanction since it is not compliant with the provisions of Article 250 of the Labour Code, the court does not become a disciplinary body and it does not interfere with the employer’s disciplinary authority, because it is not the court which enforces the sanction. By ruling in such a manner, the court only amends the sanction enforced by the employer and proceeds to a rightful individualization in accordance with the criteria stated by the law and restores the balance between the disciplinary misconduct of the employee and the inappropriate sanction enforced by the employer. In addition, if the court could not determine the sanction in such cases, the employee could remain unsanctioned, because the employer would exceed the deadline to enforce another sanction.
