The internal regulation is essential for any subject of the employment relationship – both the employer and the employee, thus being a veritable internal law within a company. The collective labor agreement has a similar role, but in this case, the ”legislative initiative” can also belong to the employee.
Our company has assisted clients who are active in various business fields in the process of drafting the internal regulation. During this legal activity, the clients raised several issues. In the following, we will present some these issues brought into discussion and the proposed approach.
1. The Dual Nature of the Professional Evaluation Procedure
Most of the time, large companies have established, through the internal regulations, a semi-annual/quarterly employee evaluation procedure. This is particularly useful both for the employee, who can benefit from a promotion, and for the employer, who can have a clear picture of the skills of its subordinates, with all the consequences that follow.
However, the Romanian Labour Code establishes that an employee evaluation procedure must also take place in a special case: the dismissal for professional inadequacy. Thus, if the semi-annual/quarterly employee evaluation procedure can serve several purposes, the other one has a specific purpose: outlining the employer’s decision whether or not the employee will be kept within the company.
In some cases, the two procedures can be correlated, in the sense that the employees know, from the content of the internal regulations, that the completion of the semi-annual/quarterly evaluation procedure can result in dismissal for professional misconduct (not to be confused with dismissal for disciplinary reasons). In other situations, employers do not want to subject employees to the fear of being fired every few months, which can create uncertainty among employees and reduce job applications.
In this latter context, the dual nature of the evaluation procedure arises, as we like to call the circumstance of inserting a special evaluation procedure that can be completed with the dismissal on grounds of professional misconduct. This takes place separately from the usual evaluation procedure and may subject the employee to more specific evaluation methods and means. In the same way, such a procedure can be triggered at any time, without the employer having to wait for the semi-annual/quarterly evaluations, which, by the way, target all employees.
Such a procedure must be sufficiently detailed to enable the judge, in the event of a dispute, to verify that the steps leading to dismissal for professional misconduct have been followed. We remind you that it is not the judge’s competence to analyze the professional suitability of the employee in question, but only to check whether the employer has complied with all the stages well defined in the internal regulations or the collective labor agreement. Our company can provide assistance in establishing the essential requirements of this procedure.
2. The Procedure for the Amicable Settlement of Labour Disputes – to Be Included in the Internal Regulations since October 2020
Starting on October 3, 2020, which is equivalent to the amendment of the Labor Code thanks to Law no. 213/2020, the legislator expressly provided that the internal regulation will not only include provisions regarding the procedure for resolving individual requests or complaints of employees, but also include provisions regarding the procedure for the amicable resolution of individual labor conflicts.
The legislator thus encouraged recourse to conciliation as a procedure for the amicable resolution of any labor dispute. The legal basis of the procedure is found in art. 2311 of the Labor Code. Given that the legislative basis leaves room for intervention by the employer, we usually propose to our clients the development of a regulation that includes rules regarding the following aspects: the invitation to conciliation, the actual conciliation procedure, the results of the conciliation procedure and the moment when the work dispute can be triggered before the courts, in the event of failure of conciliation (with clear criteria from which the intention of the parties to resort to the amicable procedure and its failure result).
3. The Issue of On-call Workers
Some employers provide employees with on-call remuneration. This means that certain employees are scheduled to be available anytime for a limited period of time (for example, one week once every three months) to the employer or, more correctly, to its customers (a matter encountered especially in the context of benefits of maintenance services in the IT field); for the simple fact that they are scheduled like this, because they are at the disposal of the employer, they receive a remuneration.
In this context, the question arose of correlating this on-call remuneration with the payment of overtime according to art. 120 – 124 of the Labor Code. A clear distinction must be made between the remuneration/bonus that is granted for the simple fact that the employee is on-call and the payment of overtime generated by the actual work performed over the normal working hours (irrelevant that this occurs when the employee is working normally or on-call) .
Thus, the employer is entitled to grant employees a bonus for the inconveniences resulting from the situation generated by the circumstance of being available for the employer, outside the normal working hours; however, this bonus does not exclude the employer’s obligation to compensate employees for overtime for work actually performed outside the normal schedule: paid time off or, alternatively, the addition of the increase to the salary.
4. Hybrid Work/Telework
The telework facility was encouraged by the pandemic context. However, despite the express provisions of Law no. 81/2018, many employers fell into a trap and considered that a unilateral provision of the employer (such as internal policies or internal regulations) is enough to send their employees to telework.
A correct conduct would have been the conclusion of an additional deed to the employment contract (deed essentially negotiated with the employee), conduct that would have protected the employers in question from stinging fines, up to 10,000 lei for each employee in the situation of performing telework without having concluded an additional act in this sense – fine borne, of course, by the employer.
5. Electronic Signing of Documents Related to Employment Relationships
Also in the context of the pandemic, the use or at least the desire to use electronic signatures has developed. In some unfortunate situations, employers have appreciated that signatures offered for free on the Internet would be sufficient to conclude or validly issue documents related to employment relationships.
Of course, these employers did not take into account the express provisions of art. 16 para. (13) of the Labor Code, which advertises the use of advanced electronic signature or qualified electronic signature. Moreover, the employer’s obligation to archive electronically signed work documents, claimed by the National Archives Law no. 16/1996 and Law no. 135/2007 regarding the archiving of documents in electronic form.
6. The Crucial Role of the Employees’ Representatives
Impediments appear in labor relations when there are no employee representatives, although the number of employees exceeds 20. Practically, the adoption of the internal regulation or the negotiation of the collective labor contract is impossible without the participation of the employee representatives. This is because, on the one hand, the internal regulation cannot be adopted without prior consultation of the employees, and on the other hand, the collective labor contract must be negotiated with them.
In the situation where, for one reason or another, the employer is left without employee representatives, we advised our clients to immediately organize elections; this is because the representatives must be elected during the general assembly of employees. Most of the time, a selection procedure is not regulated anywhere in the internal documents of the company, i.e. it is not negotiated with the employees, so the process can prove to be difficult and long – but not impossible, with a little work on both sides, the employer and employees.
In the assembly intended primarily to select the new representatives of the employees, not only must the other aspects provided for in art. 224 of the Labor Code be decided, but – on the recommendation offered to our clients – aspects related to the interim period should also be decided as well, precisely in order not to end up in a situation where there are no employee representatives when the employer needs them the most.
With regard to the effective consultation procedure of the employees, which must be followed prior to the adoption of the internal regulations, the law does not provide many details, being preferable that the form and methods of consultation be established through negotiation with the employees. Otherwise, sedes materiae is represented by Law no. 467/2006 regarding the establishment of the general framework for information and consultation of employees. This is the starting point for the consultation process, but nothing prevents the employer from agreeing with the employees – even with the help of a simple questionnaire – various procedures to ensure the completion of the procedure.
Remember: the key word in any procedure involving employee representatives, with roles well established by the Labor Code, is transparency. A transparent procedure, which ensures rigorous information to employees, is also the key to success in a possible subsequent labor dispute. Regardless of the actual approach – the adoption of the internal regulation or the negotiation of the collective labor agreement – the understanding between the employer and the employees’ representatives is crucial. Our company ensured the mediation of these reports and the support of both sides of the employment relationship to achieve the expected results in conditions of transparency and full communication.
An area of practice that we attach particular importance to in our firm’s practice is employment law – whether we side with the employer or the employee, depending on the circumstances. In any case, we always try to carry out legal work in this area in a professional manner, with the mention that the issues raised above are only a part of those revealed by our clients and – we hope – our future clients.
This article was drafted, for the Costaș, Negru & Asociații – Lawyers’ Civil Partnership blog, by Atty. Irina Galiș, affiliated to the Cluj Bar Association.
Costaș, Negru & Asociații is a lawyers’ civil partnership with offices in Cluj-Napoca, Bucharest and Arad, providing legal assistance, representation and consultancy in a number of practice areas with a team composed of 13 lawyers and consultants. Details regarding legal services and the members of the team can be found on the website https://www.costas-negru.ro. All rights for the materials published on the company’s website and on social media belong to Costaș, Negru & Asociații, their reproduction being allowed only for information purposes and with the correct and complete disclosure of the source.