Appeal set to clarify effect of controversial provision limiting the time employers have to impose disciplinary sanction following misconduct

Romania's Attorney General has recently filed an "appeal in the interest of the law" regarding the interpretation of part of the Romanian Labour Code. The particular provision sets out a deadline before which an employer must impose a sanction on an employee following misconduct. An "appeal in the interest of the law" is a judicial instrument which seeks to ensure that the law is consistently applied in respect of issues  over which courts have adopted a seemingly inconsistent  approach.

The appeal will be considered by the Romanian Supreme Court (the High Court of Cassation and Justice) and, once a ruling is delivered, it will be binding on all courts. To this extent such ruling's are an exception to the general rule under Romanian law that courts decisions do not bind  the judgments of other courts.

In terms of the  Labour Code itself, it states that an employer must issue any disciplinary sanction within 30 days following its acknowledgment of the misconduct. Any decision issued outside that period is null and void.

This provision has always been considered controversial but has been interpreted in two different ways by the Romanian courts. Some have taken it to mean that the employer must have imposed the sanction within 30 days of discovering the potential misconduct. Others have found that sanction must be imposed within 30 days of the relevant act or omission being definitively established as misconduct. In the latter case, the time limit only starts to run from completion of the disciplinary investigation procedure.

Applying the time limit strictly from the date of misconduct is the most widely adopted interpretation but it places employers under significant time pressure, primarily because (except for written warnings) all disciplinary sanctions under Romanian law may only be taken after an employer has concluded a disciplinary investigation procedure. This  involves a series of time and resource-consuming steps, including appointment of a committee, inviting the employee to a disciplinary meeting in advance, holding a disciplinary hearing, preparing a report of the investigation and so on.

According to the Attorney General, the alternative interpretation, delaying the start of the time limit, is the preferred one. If adopted, this would mean that the 30 day period would run from the moment the disciplining panel definitively determines that the act or omission amounts to disciplinary misconduct. This approach would significantly improve the position for employers and their ability to pursue the disciplinary process. In those circumstances, the only other time limit to bear in mind is that the disciplinary decision must be issued within 6 months of the date the misconduct occurred, in accordance with the general law on limitation applicable to disciplinary misconduct in Romania.