by Cosmin Mocanu
Although the entitlement of notice of the employees whose individual employment contracts (CIM in Romanian) ceases seems to be a well known aspect appropriated by employers, our law practice has shown us that reality might be quite different. Although treated as a “given” in the proceedings for the dismissal of employees for various reasons (not all liable to grant a period of notice), in reality the notice is not actually understood and assimilated as a legal institution of employment, thus leading to, in some cases, procedural errors, more or less harmful.
Therefore, we will try to clarify, as much as possible, a number of practical issues related to this institution which, sooner or later any employer encounters in his activity. In this first article, we will refer to some general questions on notice to which employers are required to follow in the case of the dissolution of certain categories of individual employment contracts.
1. What is the period of notice?
Without question, a question to which many specialists in human resources tend to respond without hesitation: “Simple. It is the period in which an employee must still be kept when his/her position is dissolved.” With slight variations on the same theme, the period of notice is sometimes seen as a period in which the employee still needs to be “allowed to come to work,” or in other cases, in which he/she “must be paid.” And in some cases, “the dissolution of the job” is replaced by the “termination of employment”.
Although none of the “practical definitions” of the notice is fundamentally flawed, in reality few times this institution is correct and complete, or understood, primarily, to be then applied legally and appropriately to the needs of the parties in each case. Without trying to give an academic definition of these notions which are very popular in the human resources practice, we can say that the obligation of notice that the employer has (and thus the correlative rights of the employee), in certain cases of termination of the individual employment contract to notify the employee on the termination of his CIM in a period of time before this termination actually takes place.
Consequently, the period of notice is an obligation for the employer and a right for the employee. It is not a term in itself, but an obligation affected by a a time period called ‘notice’. The general minimum period of notice is 20 working days, subject to art. 75 of the Labour Code, in the form in force at the moment.
2. When and to whom the period of notice must be given?
The obligation to offer a period of notice does not apply to any layoffs, but it is provided for three separate cases which are regulated in a limited way, namely:
(a) the dismissal of the employee who has become physically / mentally incapacitated for the job;
(b) the dismissal of the employee who does not meet the professional occupied position;
(c) the dismissal of the employee for the dissolution of the job they hold, whether it is an individual or a collective dismissal.
The dismissal of the employee as a disciplinary sanction enforcement is not, in fact naturally, a case in which the employer must grant a period of notice.
3. How is the period of notice granted?
Since the legal provisions that regulate the notice impose no formal requirement or procedure for the communication of the notice, human resources practitioners have formed their own practice which, though non-unitary, gave birth to veritable habits this matter.
Thus, at the present it is difficult to conceive that the right of notice may be respected in the absence of a written document in this regard, document which unless called as such (generally “delivery of notice”), at least to explicitly contain the mention that the employee will be in a period of notice, and its date of commencement and termination. In reality, the notification of the employee regarding the termination of his individual employment contract (CIM) with 20 business days after the date on which the employee is notified totally respects his right to notice.
Nevertheless, considering both the non-unitary practice in the field and the consequences of the violation of the right to a period of notice (ie the absolute nullity of such dismissal decision issued), we recommend that the standard procedure for notifying the period of notice to be made in a written form, clearly indicating the starting and the final period in which the notice takes place.
4. How is the notice period calculated?
Although apparently a simple operation, calculating the notice period must be done carefully, because its breach, even with just one working day, is sanctioned just as severely as entirely ignoring the notice period. As throughout this entire article, we shall further refer to the term of 20 business days, the general minimum period of notice. Nevertheless, in the event that certain categories of employees (generally applicable to “key employees”) benefit, through the individual (or collective) employment contract, from a period of notice larger than the minimum legal period, the employer’s obligation is to comply with the timeframe larger of the two.
Regarding the calculation of this timeframe, this must be calculated in order to include, between the date on which the starting moment of the notice was issued and the date on which the individual employment contract is terminated, a number of 20 working days, without counting the first day (the day when the notice was received) and the last one (the date on which the individual employment contract is effectively terminated).
In addition to the first and the last day, when calculating the notice period will not be included any days off, such as both Saturdays and Sundays, nor legal holidays, either expressly regulated either spontaneously established by the public authorities.
Thus, by way of example, a notice delivered on November 25 (which, for the utility of the example will be on a Friday) will be fulfilled on December 29, the date on which the individual employment contract will cease. In the notice such calculated we do not count November 30, December 1 and December 25, which are Romanian legal holidays. In addition, if, for example, Friday December 2 is also declared a free day, the notice in our example will be spontaneously extended with one day.