ROMANIA Law and Practice Contributed by: Oana Palita and Camelia Meirosu, Eversheds Sutherland Romania
re-qualify the seriousness of the offence, and to ulti - mately decide on changing the disciplinary sanction. This may have negative consequences for the employer, because if a disciplinary dismissal decision is overturned by the court the employer will have the obligation to pay to the employee all salaries that the employee would have been entitled to in the absence of the dismissal, as well as to compensate for moral damages and potentially to reinstate the employee. 7.4 Termination Agreements Mutual separation remains the most frequent option used by employers to separate with employees. This route is preferred as it reduces potential legal risks that arise out of court proceedings, and usually allows the employer and employee to agree on the conditions under which separation will occur. In the context of mutual separation, all the terms of the separation are subject to negotiation. There is no minimal notice period or statutory severance payable in the case of mutual separation – all of these terms are subject to discussion. 7.5 Protected Categories of Employee Labour law provides protection from dismissal for employees under the following circumstances: • during sick leave, established by a medical certifi - cate in accordance with the law; • during the suspension of work following the institu - tion of quarantine; • during the period in which the employee is preg - nant, to the extent that the employer is aware of this fact prior to the issuance of the dismissal deci - sion; • during leave to care for a sick child up to the age of seven years or, in the case of a disabled child, for a recurring illness, up to the age of 18 years; • during annual leave; • during paternity leave; • during family-related care leave; and • while absent from work in unforeseeable circum - stances caused by a family emergency result - ing from sickness or accident, which makes the • during maternity leave; • during parental leave;
employee’s immediate presence indispensable, provided that the employer has been informed in advance. However, these limitations do not apply in cases where the dismissal is triggered by judicial reorgani - sation, bankruptcy or dissolution of the employer. Special protection against dismissal is also provided in specific legislation. The employee can bring a wrongful dismissal claim before the competent court if they consider their dis - missal to be unlawful or unjustified. The main grounds for such a claim are: • lack of legal grounds for dismissal – the employer failed to provide a valid, legal reason for the dis - missal (disciplinary, inadequacy, redundancy, etc); • failure to observe the procedural requirements – Romanian legislation provides for strict procedural steps to be taken with every dismissal; • violation of employee’s rights – dismissal of an employee while being protected by law against dismissal; 8. Disputes 8.1 Wrongful Dismissal • lack of evidence or arbitrary dismissal – if the employee is dismissed based on disciplinary grounds, lack of evidence to substantiate the employee’s misconduct can form the basis of a wrongful termination claim; and • discriminatory or retaliation claims – Romanian leg - islation strictly prohibits dismissal on discriminatory grounds or as a form of retaliation (for example, the employee made a harassment claim against their manager, and shortly after was dismissed). Consequences of a Wrongful Dismissal Claim If the court finds that the employee was wrongfully dismissed, it may impose the following remedies and sanctions. The dismissal decision may be declared null and void, and the employer may be obliged to pay the employee
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