In the practice of the law firm Costaș, Negru and Associates in the field of labour law, we often encounter situations in which former employees wrongfully file disputes, although the acts issued by the employer are legal.
By way of example, in a ruling handed down by the Timis Court and upheld on appeal by the Timisoara Court of Appeal, the team of lawyers from Costaș, Negru and Associates managed to obtain a favourable solution in a labour dispute. Specifically, the court found the legality of the dismissal decision and the individual employment contract issued by the employer.
A particular feature of this dispute is the difference between homeworking and teleworking. This issue we intend to deal with in detail below.
A first difference between teleworking and homeworking is the legal provisions governing them. Thus, Article 108 of Law No 53/2003 on the Labour Code regulates the status of homeworkers, stating that homeworkers are those employees who carry out at home the activities specific to their profession. One of the specific features of homeworking is that the employee sets his or her own working hours, according to paragraph 2 of the same article. Home working is therefore covered by the Labour Code.
Separately, Law no. 81/2018 on the regulation of teleworking activity allows the employer to agree with the employee, where possible, the performance by the latter of the activities and duties specific to the function, occupation or profession he/she holds, in a place other than the workplace organised by the employer.
Teleworking is defined by Article 2(a) of Law No 81/2018 as “a form of work organisation whereby the employee, on a regular and voluntary basis, performs the duties specific to his/her function, occupation or profession at a place other than the workplace organised by the employer, at least one day a month, using information and communication technology”. In other words, teleworking is regulated by a special law, as opposed to homeworking which is regulated by the Labour Code.
In concrete terms, teleworking, although sometimes identified with home working, has a different specificity and involves working away from the employer’s premises – at the employee’s home or elsewhere – using computer technologies linked to the employer’s computer network.
The specifics of teleworking:
– The employee performs the duties specific to the function, occupation or trade he/she holds regularly and voluntarily, in a certain order, without deviation, in a habitual manner, according to previously established rules;
– the employee’s work duties are performed in a place of work other than that of the employer;
– teleworking is carried out exclusively by using information and communication technology, using means such as the Internet and telephone. This term (abbreviated to ICT) is technologically necessary for the acquisition, processing, storage, conversion and transmission of information using computers (electronic computers).
By way of example, the following activities are in line with the concept of teleworking:
- Searching for and contacting suitable candidates for various clients in the IT industry;
- conducting interviews;
- sending offers;
- weekly reports on the number of people contacted, offered and hired.
Furthermore, one of the important elements that a teleworking contract must include is the mention that the employee’s work is carried out teleworking.
The essential elements, if we are talking about work at home, are laid down in Article 109 of the Labour Code. These elements are:
- express specification that the employee works at home
If there is no such specification, the contract will be considered as an ordinary contract, where the place of work is at the employer’s premises or place of work, since the nature of the homeworking contract cannot be proved by presumptions or witnesses
- the programme under which the employer is entitled to supervise the work of his employee and the specific method of supervision
This clause will include the timetable and the specific method of contacting the employee (by e-mail, telephone, checking the status of connections to the intranet, via a delegated employee, etc.), precisely in order to ensure discipline in the conduct of the employment relationship and avoid certain abuses by the employer or the employee.
- the employer’s obligation to ensure the transport to and from the employee’s place of residence, where appropriate, of the raw materials and materials he uses in his work and the finished products he produces.
The insertion of this clause is only necessary if the activity carried out by the employee involves the use of raw materials.
When it comes to working hours, there are important differences between working from home and teleworking. So if we are talking about homeworking, employees set their own hours to carry out their work tasks. At the other end of the spectrum, in the case of teleworking, teleworkers organise their working hours jointly and in agreement with their employer in order to carry out their duties. In the latter case, the provisions of the individual employment contract, the internal rules and/or the collective agreement must also be respected.
If we refer to the possibility for the employer to check the work performed by the employee, in the case of homeworking the employer has the right to check the employee’s work under the conditions laid down in the individual employment contract. In the case of teleworking, the employer may check the activity of the teleworker under the conditions laid down in the individual employment contract, internal regulations and collective labour agreement. We note that in this situation the provisions between the two are similar.
With regard to the recording of working hours, if we are talking about home working, the employer keeps records of the working hours worked daily by each employee under the conditions agreed with the employee in writing, depending on the specific activity carried out by each employee. In the case of teleworking, the record of work performed is provided for in the individual employment contract.
Thus, in the dispute at issue, the problem was that the employee considered the employer’s directive requiring him to be physically present in the office on the grounds that he was working from home to be abusive.
In this context, the court held that the employer’s request was lawful and found that the conditions relating to working from home were not met, but those relating to teleworking. Since the essential conditions are lacking, the employer may require the employee to be physically present in the office as long as the work is carried out teleworking.
On the basis of those arguments, the court dismissed the employee’s claim. The decision of the first instance was upheld on appeal by the Timisoara Court of Appeal.
In conclusion, although there are similarities between homeworking and teleworking, and one would be tempted to consider that they are essentially the same, there are a number of differences between these ways of working. These differences should be borne in mind by both employer and employee because, as we have outlined above, they can make the difference between a claim being upheld or dismissed.
This article was prepared for the blog of the law firm Costaș, Negru & Asociații by atty. Loredana Feier (Baroul Cluj).
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 18 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.
