Case Study – Challenging a Disciplinary Sanction Decision
The courts in Cluj-Napoca admitted the contestation filed against a disciplinary sanction decision by which our client had 10% of his base salary reduced for a period of 3 months.
Thus, both the Cluj Tribunal (Labor Disputes Section) at first instance, and the Cluj Court of Appeal on appeal, ruled for the annulment of the disciplinary sanction decision, considering it issued without compliance with the legal requirements.
Factual Situation That Led to the Disciplinary Investigation
In 2015, our client and a major hospital in Cluj-Napoca entered into an open-ended individual employment contract, stipulating that the employee would hold the position of electronics technician and carry out maintenance and repair of medical equipment, according to the job description.
Later, at the end of 2016, by order of the hospital manager, the employee was appointed as a member of the Commission for the inventory of fixed assets and inventories within a research unit associated with the hospital.
Shortly after the appointment, the technician sent several explanatory notes to the employer informing management that he did not wish to serve on the inventory commission because he lacked seniority, the necessary knowledge, and qualification to carry out inventory activities. He also indicated that he wished to strictly perform the technical tasks specified in his job description.
Between 2016 and 2020, a tense relationship developed between employee and employer, culminating in 2020 with the issuance by the hospital of a disciplinary sanction decision. By this decision, a 10% reduction of the base salary was imposed for 3 months, a sanction preceding dismissal in terms of severity.
Under these circumstances, the employee turned to labor law attorneys at Brisc Legal to contest the sanction decision in court on grounds of illegality and lack of merit.
Grounds of the Contestation Against the Disciplinary Sanction
Lack of Summons to the Disciplinary Investigation
In arguing the illegality of the sanction decision, we invoked its absolute nullity due to the lack of summons to the disciplinary investigation, disregarding the provisions of Article 251(2) of Law no. 53/2003 (the Labor Code). Under that law, the employee must be summoned in writing regarding the subject, date, and place of the meeting for the disciplinary investigation.
In this case, no document was legally served to summon the claimant before the Disciplinary Committee for raising defenses against the accusations. Thus, the right to defense was not respected. The applicable sanction is absolute nullity of the sanction decision, pursuant to Article 251(1) of the Labor Code, since the disciplinary investigation was conducted unlawfully.
In its defense, the medical unit argued that the procedural noncompliance of the employee’s absence from the disciplinary committee session was remedied by the presence of a union representative accompanied by the union’s lawyer. In reality, the presence of the employee before the committee is mandatory, and representation is allowed only upon request, according to Article 251(4) of the Labor Code.
Here, the claimant was not legally notified and did not appoint a union representative or lawyer to represent him. Furthermore, the mere presence of those two persons (lawyer, union representative) under Article 4 of Annex 10 to the collective agreement (which states “the union representative shall be invited to every meeting of the disciplinary committee”) cannot substitute for the personal presence of the employee or his chosen representative.
Conducting the Disciplinary Investigation During a Medical Leave Period
Another ground for nullity was that the disciplinary investigation took place while the employee was on medical leave. According to Article 50(b) of the Labor Code, the individual employment contract is automatically suspended during periods of temporary incapacity for work. Combined with Article 49(6) of the Labor Code, it follows that all deadlines relating to the conclusion, modification, or termination of the employment contract are also suspended. Thus, disciplinary procedures are likewise suspended during that time. Any acts or measures taken while the contract is suspended — including issuance of a disciplinary sanction decision — are absolutely null.
Insufficiently Reasoned Disciplinary Decision
Also, under Article 252(2) of the Labor Code, a disciplinary sanction decision that fails to include a statement of the act constituting the infraction and does not refer to applicable provisions from personnel statute, internal rules, or the employment contract (individual or collective) is absolutely null.
In the present case, the employer limited itself to abstract and vague references to the infractions justifying the disciplinary procedure:
- “non-observance of supervisor’s work orders” (without specifying which orders)
- “alteration of documents from work orders” (without further explanation)
- “creating a tense work environment by accusing colleagues and medical staff of acts he himself performed” (without naming the colleagues or acts specifically)
Thus, the duty to describe the act is only met when the court tasked with legality review can identify the concrete elements of the act or omission by the employee. The absence of description (including time, place) or inability to individualize the act, and the omission of references to legal or contractual provisions violated the right to defense by making it impossible for the employee to counter the presented accusations.
According to Article 79 of the Labor Code, applicable in this context, defects in a disciplinary decision cannot be remedied before the court in the litigation procedure. Additionally, no other infractions can be invoked beyond those stated in the disciplinary decision.
Court Rulings
Regarding the aspects mentioned above, the Cluj Tribunal accepted the contestation filed by the employee and annulled the disciplinary sanction decision as illegal. Because the illegality of an act is assessed with priority over its merit, the court did not rule on the merits of the sanction decision; that request remained moot.
The Cluj Court of Appeal upheld the lower court’s decision on appeal and furthermore ordered the employer to pay in full the legal costs incurred by the contestant.