In the field of labor law, the team of Costaș, Negru and Associates, often encounter situations in which the employer tries to attract the financial liability of former employees.
By way of example, in a judgment handed down by the Bucharest Court and upheld on appeal by the Bucharest Court of Appeal, the team of lawyers from Costaș, Negru and Associates succeeded in obtaining a favorable solution in a labor dispute. Specifically, the court found that the conditions for the employee’s financial liability were not met.
In the following, we intend to deal with the concept of the employee’s financial liability and the conditions under which it can be held.
Employees’ financial liability is a legal mechanism by which an employer is entitled to recover damages caused by an employee in connection with his work. This form of liability is a variety of contractual civil liability, with particular aspects arising from the specific features of employment relationships.
If we turn to the distinction between contractual civil liability and employees’ financial liability, the following clarifications are necessary:
- An employee’s financial liability may relate only to compensation for material but not to compensation for non-material damage
- Compensation for the damage caused shall be made by equivalent compensation
- As a general rule, clauses may not be inserted in the contract which aggravate the employee’s liability
- Employees shall not be liable for damage that falls within the normal risk of the service.
In the event that the employer finds that the employee has caused damage through his fault and in connection with his work, he may request the employee, by means of a notice of ascertainment and assessment of the damage, to recover the amount of the damage, by agreement of the parties, within a period of not less than 30 days from the date of communication. The value of the loss or damage recovered by agreement between the parties may not exceed the equivalent of five times the gross minimum wage.
Therefore, if the employee causes damage to the employer, this one has two ways of repairing the damage: either amicably, as mentioned above, or in court – in which case the conditions set out in Article 254 of the Labour Code must be met.
The following conditions must be met in order to incur the financial liability provided for in Article 254 of the Labour Code:
- Existence of material damage;
- Be an employee of the injured employer;
- The existence of a wrongful act committed in connection with the employee’s work;
- The causal link between the unlawful act and the damage;
- The culpability of the employee who caused the damage.
Therefore, in order for an employee to be held financially liable, the cumulative fulfillment of the above-mentioned conditions is required. If even one of these conditions is lacking, the employee cannot be held financially liable.
The damage constitutes a negative change in the employer’s assets as a result of a wrongful act. The damage must be actual, that is to say, the assessment of the loss must be established on the basis of concrete and certain economic data, the burden of proof being on the employer, and the evidence adduced in the case must show beyond doubt the extent of the damage.
The employer is responsible for proving in court the existence of the damage to the employer’s assets created by the improper performance or non-performance of the employee’s work duties, and it is necessary that the acts of ascertainment of the damage or other evidence unquestionably prove the existence and extent of the amount of the damage.
We point out that, according to the provisions of the Labour Code and the case law on the matter, an unlawful act is committed when the employee fails to perform or does not perform his/her job duties established by the job description. Thus, we consider that, in order to establish whether there has been unlawful conduct, the job description must necessarily be analyzed.
The unlawful nature of the unlawful act must be assessed in relation to the duties arising from the job description. The employer has to prove the employee’s duties, the non-fulfillment or improper fulfillment of which has caused damage, but they must be included in the job description.It is important to note that the duties must be specific and not general and fully possible to fulfill.
The harmful act, as an element of the employee’s financial liability, is any act or omission of the employee which involves either failure to fulfill the service obligations and any other omission in relation to the service obligations, or violation of prohibitive provisions of the individual employment contract, internal regulations or the law.
The commission of an unlawful and personal act by the employee in connection with his work is the essence of financial liability. The absence of a personal wrongful and harmful act on the part of the employee and the absence of any link between such an act and the employee’s work exonerates the employee in question from liability in respect of his or her assets.
It is for the employer to prove the existence of an unlawful act committed in connection with the employee’s work, that is to say, to prove in court that the damage was caused by the improper performance or failure to perform the employee’s duties.
Further, if we refer briefly to another condition, namely the causal relationship between the wrongful act and the damage caused, it is shown that financial liability presupposes a harmful result materializing in a damage of economic value generated by employees through their fault and in connection with their work.
In determining the causal relationship, a detailed and concrete analysis is necessary in order to establish, on a case-by-case basis, the act or acts that have caused the possibility of damage to become a reality.
Next, culpability is the subjective element of liability, which consists in the person’s mental attitude towards his or her act and its harmful consequences. Culpability presupposes the employee’s discernment, that is to say, the employee’s capacity to recognize the wrongful act and its harmful effect and the free will existing at the time when the harmful act was committed.
At the same time, the basis of the financial liability is the employee’s culpability, which must be proven by the employer, under the conditions of Article 287 of the Labour Code.
On the basis of the claim and the documents submitted in evidence by the employer, the court found that the employer did not rely on concrete evidence to prove the unlawful act and the culpability of the defendant employee in causing the damage, namely it did not prove that the defendant was guilty in causing the so-called damage.
Also, the court concluded that the employer did not prove that the former employee did not effectively fulfill the duties set out in the individual employment contract and in the Internal Regulations, with the consequence that the alleged damage was caused.
In conclusion, it follows from the entire regulation that the financial liability of the employee can be incurred only if it is proved that the employer’s assets have been damaged by a personal and unlawful act of the employee, committed in connection with his work, the conditions provided for by the Labour Code being mandatory to be met.
This article was prepared for the blog of the law firm Costaș, Negru & Asociații by atty. Loredana Feier, both 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 17 lawyers and consultants. Details of the legal services and the composition of the team can be found at https://www.costas-negru.ro.
All rights for materials published on the company’s website and via social media belong to Costaș, Negru & Asociații, reproduction is permitted for information purposes only and with full and correct citation of the source.
