In its labor law practice, the Costaș, Negru & Asociații team faces several practical problems, which are not easily or uniformly resolved even by the courts. One of these problems is that of determining the notice period.
In the context of an inconsistent case law, the People’s Advocate referred the matter to the High Court of Cassation and Justice earlier this year with an appeal in the interest of the law. This action concerned the method of calculations of the notice period. Of interest was whether or not this calculation also included the day on which the notice of termination of the individual contract of employment was served, i.e. the day on which the notice period expired. The wording of this RIL comes in the context of the courts’ inconsistent application of the provisions of Art. 75 para. 1) and Art. 278 para. 1 of the Labor Code, with reference to the provisions of Art. 2553 para. 1 of the Civil Code and Art. 181 para. 1 item 2 and para. 2 of the Civil Procedure Code.
In order to provide a context, we will present, in the following, the notion of notice from a doctrinal point of view. So, as the specialized doctrine provides, the purpose of the notice is to ensure that the employer can take the necessary measures to replace the employee who resigns, thus avoiding the negative consequences that could have the untimely termination of the employment contract.
It is important to note that the employee is not obliged to give reasons for his or her resignation, but his or her expression of willingness to do so must be clear, precise, firm and unequivocal. In other words, there must be a clear wish on the part of the employee to resign.
Further, according to Article 81 paragraph 8 of the Labor Code, the employee may also resign without notice only in the event that the employer fails to fulfill its obligations under the individual employment contract. By way of example, an employee may resign without notice if the employer unjustifiably refuses to pay him.
In order to offer protection to the employer, the notice of resignation must be given before the termination of the individual employment contract. The notice period is therefore the one agreed by the parties in the individual or collective employment contract and may not exceed 20 working days for employees in executive positions and 45 working days for employees in managerial positions.
We note that the law does not provide for a minimum notice period, but sets a maximum limit: 20 working days for executive positions and 45 working days for managerial positions. Therefore, regardless of the reason given, the parties cannot set a period of notice longer than that provided for by law. Otherwise, the clause will be null and void, as it imposes an obligation on the employee which is contrary to a mandatory legal rule.
From another perspective, it should be noted that failure by the employee to register the resignation and implicitly the notice period gives the employer the possibility to bring the employee’s disciplinary liability for unjustified absences from work, since during the notice period the individual employment contract continues to produce all its effects.
So, the employee is required to carry out his work under the same conditions as at the time of his resignation, i.e. to comply with the obligations arising from the individual employment contract. In such a situation, the employer may obtain damages for the loss caused by the employee as a result of the untimely termination of the individual employment contract and the failure to comply with the contractual terms.
Returning to the concept of notice and the way in which it is calculated, we reiterate that the view of the courts has been an unintuitive one.
In a first interpretation, the courts have held that the day on which the notice was served and the last day on which the notice period expired should not be taken into account when calculating the period of notice. In this method of calculation, only working days will be taken into account.
In the second interpretation, it was held that Article 2553 of the Civil Code is not applicable because the phrase working days causes an incompatibility between the Civil Code and the Labor Code. In this context, it was argued that, with regard to the period of notice, the legislator has expressly provided by Art. (l) of the Labor Code that it consists of 20 working days. Given that the provisions of the Civil Code do not operate with working days, but only calendar days, the provisions of Article 2553 of the Civil Code cannot be applied to the calculation of the notice period.
Given that the regulations already laid down in the Labor Code do not provide sufficient information on how to calculate the period of notice, it ruled on this eternal problem by settling the RIL formulated by the People’s Advocate.
The High Court of Cassation and Justice has established that, in the case of the notice period for dismissal, the day of communication of the notice of dismissal is not taken into account, so, the notice period starts to run from the day following the day of communication of the notice of dismissal and ends on the last day of the period. The High Court of Cassation and Justice ‘s solution was as follows:
“In the interpretation and unitary application of the provisions of Art. 75 para. (1) and Art. 278 para. (1) of the Labor Code, the period of notice begins to run from the day following the day on which the notice of notice is served and is completed on the last day of the period, the provisions of Art. 181 para. (1) point 2 and para. (2) of the Code of Civil Procedure, as well as those of Article 2.553 para. (1) of the Civil Code are not applicable. Mandatory, according to the provisions of art. 517 para. (4) of the Code of Civil Procedure.”
In conclusion, the High Court of Cassation and Justice held that the provisions of the Code of Civil Procedure on the calculation of time limits are not applicable. Therefore, it offered a solution regarding the calculation of the notice period, namely that it starts to run from the day following the day on which the notice of notice is served and ends on the last day of this (notice) period. This solution settles this issue, and the courts are obliged to apply this reasoning in deciding cases.
This article was prepared for the blog of the law firm Costaș, Negru & Asociații by atty. Loredana Feier, from the Cluj Bar Association.
Costaș, Negru & Asociații is a law firm with offices in Cluj-Napoca, Bucharest and Arad, which provides assistance, legal representation and advice in several practice areas through a team of 20 lawyers and consultants. Details of the legal services and the composition of the team can be found at https://www.costas-negru.ro.
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