WHEN CAN THEY DISMISS US WITH NOTICE?
The Supreme Court of Cassation adopted an interpretative decision on issues related to the termination of the employment contract by the employer.
In it, the supreme judges interpret three of the hypotheses in Art. 328 of the Labor Code, in which the employer may dismiss his employee with notice - in the absence of qualities for effective work (item 5), when he does not have the necessary education or qualification (item 6) and in case of change of the requirements for the position (item 11).
According to him:
1a. There is no ground under Art. 328, para. 1, item 6 of the Labor Code for termination of the employment contract, if at its conclusion the employee does not meet the requirements for education or professional qualification introduced by the employer for the performed work.
1b. There is a ground for termination of the employment contract under Art. 328, para. 1, item 6 of the Labor Code, when at its conclusion the employee does not meet the requirements for education or professional qualification for the performed work introduced by a normative act.
The interpretative case was instituted due to the existence of contradictory case law in the application of the above provisions of the Labor Code by various panels of the Supreme Court of Cassation.
The reasoning of the interpretative decision states that the conclusion of an employment contract in the initial absence of the employer's requirements for a certain position is not an obstacle to the existence of the contract itself, but the employer's assessment that a candidate can perform the assigned work in the interest of the company it may be justified by the professional experience of the employee in the same or a similar position or by the absence of another candidate for the vacant post.
According to the Supreme Judges, if the employer has agreed that the education and/or qualification held by the employee does not constitute an objective reason for the performance of the employment function at the conclusion of the employment contract, but has subsequently terminated the employment due to lack of employment, the employer will in fact refer to the employment requirements imposed by him, which he himself considered to have not been an obstacle to the performance of the employment contract.
The reference by the employer in these cases to the grounds for termination of the individual employment contract under Art. 328, para. 1, item 6 of the Labor Code for lack of the required education and/or professional qualification will contradict the general principle established in Art. 57, para. 2 of the Constitution, "no abuse of rights and their exercise shall be allowed if it infringes the rights and legitimate interests of others", therefore it should be denied.
When concluding an employment contract with an employer who has agreed that the education or professional qualification possessed by the employee is sufficient for the performed work, but it is established that the requirements for holding the respective position are normatively established, which makes it impossible to maintain the employment relationship, the employer may request that the contract be declared invalid with a claim under Art. 74 of the LC.
According to the Supreme Judges, until the invalidity of the employment contract is declared by an effective court decision, there will be a valid legal relationship that can be terminated by the employer on any of the exhaustive grounds for its termination, including the grounds under Art. 328, para. 1, item 6 of the LC.
The interpretative decision states that the significant difference in the grounds for dismissal under Art. 328, para. 1, item 6 and item 11 of the Labor Code shall be manifested with regard to the legal consequences upon termination of the employment contract. Only in the hypothesis of Art. 328, para. 1, item 11 of the Labor Code, the employer must observe the provision of Art. 333, para. 1 of the Labor Code, which establishes preliminary protection in the case of dismissal of certain categories of workers and employees.
Therefore, when the employee falls within the scope of the cases in which the termination of the employment contract by the employer is possible only after prior permission by the Labor Inspectorate, it is necessary to distinguish the hypotheses of Art. 328, para. 1, item 6 and item 11 of the LC, shall be stated in the reasons.
With a legislative change from 1992, a new ground for termination of the employment contract is accepted by the employer with a notice - under Art. 328, para. 1, item 11 of the Labor Code, which does not duplicate the dismissal grounds existing under 1986 under Art. 328, para. 1, item 6 of the Labor Code, and introduces an entirely new, different ground for termination of the employment contract, in case of change of the requirements for the performed work, out of those for education or professional qualification.
The provision of Art. 328, para. 1, item 11 of the Labor Code means a change of any other requirements, but not of those for education and professional qualification, as in respect of them there is the norm of art. 328, para. 1, item 6 of the LC. "Therefore, in the hypothesis of Art. 328, para. 1, item 6 of the Labor Code, the change refers specifically to the requirements for education and professional qualification, and in the other hypothesis under item 11 - any other professional requirements - work experience, additional new knowledge and skills, but without changing the requirements for education and professional qualification, ie all other requirements necessary for the performance of the job function”, reads the interpretative decision.
According to the Supreme Judges, the need for the employer to indicate the factual grounds for termination of the employment contract due to lack of qualities is derived from the rules for individualization of the will, taking into account the importance of the principles of protection of labor rights and legality of dismissal. In this case, the essential content of the statement of intent to terminate the employment contract by the employer is the grounds for termination.
By indicating it, the necessary individualization is achieved. The grounds for termination of the employment contract under Art. 328, para. 1, item 5 of the Labor Code is formulated as a general evaluative and indefinite concept - "lack of qualities to perform the work."
Its content includes the signs: permanent non-fulfillment of a work obligation in qualitative, quantitative or temporal terms, caused by lack of knowledge, skills or habits. Insofar as each individual type of non-performance, as well as each individual lack of knowledge, skills or habits could become a reason for termination of the employment contract, in order to individualize his statement of will upon termination of the contract under Art. 328, para. 1, item 5 of the Labor Code, the employer should indicate the factual reason for its termination.
For individualization of the declaration of will it is sufficient in the written order for termination under Art. 328, para. 1, item 5 of the Labor Code to list which knowledge, skills or habits are missing or to indicate what the permanent inefficient performance of the work consists of. In both alternatives, the purpose of the law is achieved and the employee can exercise his/her right to defense.
