Daniela David November 2 2022 Controversial issues regarding the notice to attend disciplinary hearing Vernon|David | Employment & Immigration - Romania Daniela David Employment & Immigration IntroductionKey considerations regarding disciplinary investigations and hearingsPractical approach to "reasonable" disciplinary noticeCommentIntroductionConducting and organising disciplinary investigations and hearings is a key component of companies confronting and addressing employee misconduct. An important aspect of such hearings and investigations in Romania is providing appropriate notice to employees.This article delineates fundamental issues that an employer should keep in mind when conducting disciplinary investigations and hearings with a focus on what is, in practice, a reasonable amount of disciplinary notice.Key considerations regarding disciplinary investigations and hearingsThe Romanian Labour Code provides specific steps that employers must take when conducting a disciplinary investigation and taking appropriate disciplinary action.As a matter of procedure, prior to applying any disciplinary sanction against an employee (except for a written warning), an employer must conduct a disciplinary investigation in accordance with the law and its internal regulations. This is to determine whether the employee's conduct constitutes an offence that may require disciplinary actions or sanctions. Such investigation must be conducted by a disciplinary commission appointed by the employer and it usually consists of a disciplinary hearing in which the employee is allowed to present their defence.It is important to keep in mind that failing to follow the legal and internal requirements and investigate properly can result in the annulment of any sanction given by the court. It should be noted that courts typically favour employees in litigation, so it is of critical importance to follow the relevant procedures. Furthermore, when the sanction applied is the dismissal of the employee, if the employee wins in court, the employer is often required to reinstate the employee and to pay all salaries/benefits from the date of dismissal.If an employee is found to have committed an offence, the Labour Code provides for the following actions/sanctions, depending on the seriousness of such offencea written warning;a demotion for up to two months;a reduction of basic pay and/or management allowance for one to three months by 5% to 10%; andthe termination of the individual employment agreement.Most employers, if they have decided to proceed with a disciplinary hearing and find that misconduct has occurred, opt for termination/dismissal. However, it should be noted that an employee must have committed a repeated or serious disciplinary offence, which commonly refers either to:disregarding the fundamental principles or values of the employer's activity; oran offence that causes serious damage or consequences on the patrimony or image of the employer.One of the first actions of the disciplinary committee is to summon the employee to a disciplinary hearing, which should include the subject matter and reason for the hearing as well as the date, time and place of such hearing. During the disciplinary investigation, the employee has the right to be assisted, upon request, by a representative of the union, an employees' representative or by an external consultant specialised in labour law (including legal counsel).Following the investigation and the analysis of the all the evidence and documentary material, the disciplinary committee issues an investigation report, which must include the results of the disciplinary investigation and their recommendations with respect to the sanctions to be applied to the employee (if any). Such report must be registered with the company's registry and submitted to the appropriate management body of the employer empowered to impose the relevant disciplinary sanction (again, if any).Finally, employees in Romania cannot be sanctioned for offence older than six months. If the employee's misconduct is not caught in a timely manner, then it becomes problematic for an employer to discipline an employee and other options may need to be considered.Practical approach to "reasonable" disciplinary notice From practical experience, it can be observed that the notice period granted to an employee prior to the disciplinary hearing is a sensitive issue when the legality of the disciplinary investigation is challenged in court by the employees. Below are some thoughts as to how best to deal with the issue of an employee challenging a disciplinary hearing decision on the grounds that there was no notice period, or that the notice period was insufficient,Unfortunately, there are no specific legal provisions as to what a "reasonable" notice period for a disciplinary hearing is. The Labour Code states that the sanctioning decision is null and void if a disciplinary investigation was not carried out by the employer prior to applying a sanction to the employee (except for the written warning). Therefore, using a lack of notice as an argument to attack the disciplinary investigation and hearing is not expressly provided by law.In this regard, context becomes important to what is reasonable notice. The employee needs to demonstrate that they were given so little time to prepare that such lack of notice violated their legal rights, and that such infringement can only be rectified by annulling the sanctioning decision. For instance, if the employee is summoned to the disciplinary hearing for a significant number of offences, granting them a disciplinary notice of one day may be problematic considering that the employee may argue in court that the disciplinary notice did not allow them to understand all of the allegations and prepare their defence before the hearing took place.However, recently, the courts have started to take a more formal and clear-cut approach to the idea of reasonable notice. For instance, the courts have decided that one or two days' notice is not sufficient and violates an employee's rights. In addition, the courts have decided to use a standard minimum five-day requirement for notice. Such a notice period is not supported by any legal provisions, but it was once the standard under the "National Collective Labour Agreement" concept, which was discarded some time ago and has not been in place since 2010.Although it is generally recommended to provide a minimum of five days' notice due to the courts' past practice, it is not legally required. However, as explained below, the factual situation, the disciplinary offence, the amount and type of harm to the company and other factors may call for quicker action by an employer. "Reasonable" notice should be guided by the specific situation at hand and employers should not be concerned about taking quick and decisive action, when appropriate.When dealing with these cases in which an employee raises notice as an issue and the reason for cancelling the disciplinary decision, context is key, and it is advisable that the employee proves that additional time would have been helpful or made a difference. If the employee cannot demonstrate that the additional time, if granted, was needed to develop new or additional arguments or evidence to support their claim, then a shorter or longer notice period would have made no material difference to the case. Extra time to argue the same facts/legal reasons does not fundamentally alter the fairness of the disciplinary hearing/decision.In a well-known and publicised case regarding a breach of the General Data Protection Regularion rules by a Romanian bank employee, the Court of Appeal set a new standard for employee notice requirements for Bucharest and the surrounding region. It is now supported by the Court of Appeals that reasonable notice is not a fixed number of days but should be determined by the context of the situation (including harm to the company) and the actions/conduct of the employee.In brief, the case at hand was fairly straightforward. The employer summoned the employee to a disciplinary hearing on the same day in which the employer was notified of the misconduct. The court analysed the "reasonableness" of such disciplinary notice, in the light of the fact that the employee's supposed offence was serious in nature and that the employee admitted to the misconduct to their direct superior. One of the main arguments was that since the employee admitted the commission of the imputed offence, the disciplinary investigation did not require complex debates or the administration of a considerable amount of evidence. Given the fact that the offence committed was particularly serious and had already generated material damage to the employer, granting the employee a longer period prior to the disciplinary hearing would have had objective justification.Although the employee claimed that the employer had violated their right to defence by setting such a short notice period, the employee failed to provide the court with any additional arguments or evidence which the employee could have presented to the disciplinary committee if the investigation had taken place within a different timescale. Also, the lack of a request submitted by the employee for the postponement of the disciplinary hearing represented a key element of the case, which confirmed that the amount of notice was deemed as sufficient by the employee when preparing their defence. On this particular matter, the court stated that if the employee has not claimed before the disciplinary committee the fact that additional time is needed in order to prepare their defence or that they wished to be assisted by a lawyer (although the employee had been informed of such rights), the employee cannot subsequently claim that their right of defence had been violated.CommentTo summarise, there should not be a fixed number of days regarding reasonable notice for a disciplinary hearing – context and the facts of the case should be considered. The court's decision confirms the view that establishing a short disciplinary notice does not automatically lead to the annulment of the sanctioning decision and that what amounts to "reasonable" should be analysed on a case-by-case basis.Considering the above, when assessing what constitutes adequate and reasonable notice for a disciplinary investigation/hearing, employers should consider the following factors:the date when the disciplinary offence occurred;whether it is one or several offences – if, for example, the offence is a few months old or the employee is summoned for committing several offences, a longer notice period might be required, so that the employee has enough time to review the events under investigation;the complexity of the investigated matter – if, for example, a technical or complex event is under investigation, a longer notice period may be required as well in order for the employee to be able to prepare their case;the severity of the offence and the damage caused to the employer – if, for example, the offence committed by the employee implies a security and/or a reputational risk for the employer, a shorter notice period could be argued as "reasonable" in such specific cases; andthe behaviour of the employee both during the employment relationship and the disciplinary investigation should be considered.For further information on this topic please contact Daniela David at Vernon|David by telephone (+40 2131 156 54) or email ([email protected]). The Vernon|David website can be accessed at www.vdalegal.com.