Exceptions to the provision of article 333 of the Labor Code regarding protection of employees in case of dismissal

The matter of legal protection of employees in case of dismissal is addressed in article 333 of the Labor Code, which stipulates that an employer must satisfy a number of additional requirements when terminating unilaterally employment of certain categories of employees.

The scope of such protection is defined by the legislator by identifying the categories of employees to whom it applies and by exhaustively listing the possible grounds for unilateral termination of an employment relationship by the employer.

In terms of the possibilities for sidestepping such protection as provided by the Labor Code, said protection can be either absolute or relative (conditional).

The categories of employees entitled to relative prior protection are:

– a female employee who is the mother of an infant up to 3 years of age;

– an employee re-assigned to a suitable job/position on account of a disability;

– an employee suffering from a medical condition as defined by an ordinance of the Minister of Health. Such medical conditions listed in Ordinance No. 5 on the medical conditions that warrant special protection of the affected individuals under article 333(1) of the Labor Code (promulgated in State Gazette, No. 33 of April 28, 1987) are: ischemic heart disease, active tuberculosis, any oncological disease, any occupational disease, any mental disorder, and diabetes;

– an employee on a statutory leave of absence;

– an employee who is an elected representative of the workforce, for the duration of their term in such capacity;

– an employee who is a representative of the workforce on matters of health and safety at work, elected by the general workers’ meeting or the assembly of workers’ representatives, for the duration of their term in such capacity;

– an employee who is a member of a special negotiating body, an European Works Council or a representative body in a European commercial or cooperative entity, for the duration of their term in such capacity;

– an employee who is a member of the trade union leadership body of the enterprise, or an elected territorial, sectoral or national trade union leadership body, for the duration of their term in such capacity and up to 6 months following their stepping down from said leadership position.

The grounds for unilateral termination of an employment relationship by the employer to which prior protection under article 333 of the Labor Code applies are listed below:

• partial closure of the enterprise or staff cuts;
• a decrease in work volume;
• the employee lacks the qualities necessary for properly doing their job;
• changes in job requirements that the employee is unable to meet;
• a disciplinary dismissal of the employee.

With respect to the categories of employees listed above, protection against unilateral termination of an employment relationship by the employer amounts to the requirement for the employer to seek and obtain prior authorization from the labor inspectorate for each individual case.

In cases of a proposed termination of the employment contract of an employee who has been re-assigned to a job/position on account of a disability, or suffers from any of the medical conditions listed in Ordinance No. 5/1987, in addition to prior authorization from the labor inspectorate, the employer is also mandated to seek an opinion from the Territorial Expert Medical Commission.

The legality of the dismissal of an employee who is a member of a trade union leadership body is contingent upon the employer obtaining the prior consent of a union body identified by a decision of the central leadership of the respective trade union organization.

The Labor Code provides some leeway to the parties to a collective employment agreement to expand the range of individuals entitled to protection against dismissal so that in each individual case of termination (lay-off) on the grounds of staff cuts or a decrease in work volume, such lay-off must be made contingent upon the prior consent of the relevant trade union body in the enterprise being sought and obtained by the employer.

The exceptions to the provision of protection of employees in case of dismissal can be derived from the actual wording of article 333 of the Labor Code by argument to the contrary.

No such protection applies with respect to the grounds for dismissal of employees otherwise entitled to protection in the following cases:

• in the event of closure of the enterprise;
• in the event of suspension of operation for over 15 working days;
• in case an employee lacks the required educational level or professional qualification to perform the job assigned to them;
• in case an employee declines to follow the enterprise or a division thereof if it is being relocated to another populated area or locale;
• in case where the job or position held by the employee must be vacated for the purpose of reinstating an unlawfully dismissed employee who held said job or position prior to the appointment of the employee;
• in case where the employee has reached pensionable status in terms of both length of service and age, except in cases as per article 69c of the Social Security Code; and upon reaching 65 years of age, for professors, associate professors and doctors of science, except in cases as per § 11 of the Transitional and Final Provisions of the Higher Education Act;
• in case where the employee has been granted a pension at a reduced rate for length of service and age in accordance with article 68a of the Social Security Code;
• in case where an employment contract has been entered into after an employee has reached pensionable status in terms of both length of service and age and has exercised their right to a pension;
• in case where an employment contract has been entered into with an employee who has been granted a pension at a reduced rate for length of service and age in accordance with article 68a of the Social Security Code;
• in case of an objective impossibility for the performance of an employment contract.

The following scenarios should be added to the list of exceptions to the provision of protection of employees in case of dismissal as per article 333 of the Labor Code:

– termination of an employment relationship of employees who are members of the company management, if they entered into a new management contract;

– termination of employment for an employee during their probationary period;

– in cases where an employee continues to work without using their statutory leave of absence (irrespective of whether said leave of absence is their paid annual leave, or an unpaid leave, or a study leave, or a temporary incapacity leave, etc.);

– in case of failure on the part of a pregnant female employee, or of a female employee who is at an advanced phase of in-vitro treatment, to present a certificate duly issued by the competent medical authorities in evidence of her condition;

– in case where an employee has willfully provided false assurances to the employer that they do not suffer from a condition for which protection is provided in accordance with Ordinance No. 5/1987.

Unlike the protection of a pregnant female employee, or a female employee who is at an advanced phase of in-vitro treatment, in this case the protection is objective, i.e. failure by the employee to fulfil their obligation to inform the employer of their condition or submit the documents required in evidence thereof, will not have any impact on the legal force and effect of such protection. Said protection will be invoked irrespective of whether the employer was informed of the employee’s condition or whether any documents had been submitted in witness thereof;

– upon declaring an employment contract null and void;

– upon terminating an employment relationship that is the result of an election;

– upon termination of a contract for overtime work.

Absolute protection is provided by the Labor Code with respect to pregnant female employees as well as female employees at an advanced phase of in-vitro treatment on the grounds listed below:

• partial closure of the enterprise or staff cuts;
• a decrease in work volume;
  • suspension of operations for over 15 working days;
  • the employee lacks the qualities necessary for properly doing their job;
  • the employee lacks the required educational level or professional qualification to perform the job assigned to them;
  • a change in the job requirements that the employee fails to meet;
  • the employee has been barred by a court ruling or by an administrative order from performing a profession or holding a position to which they were appointed;
  • the employee has been stripped of the academic credentials that were required for their employment contract to be signed;
  •  the employee has been struck off the registers of the relevant professional organizations as per the Law on Professional Organizations of Physicians and Dentists, or the register of the professional organization of master pharmacists as per the Law on the Professional Organization of Master Pharmacists, or the register of the relevant professional organization as per the Law on Professional Organizations of Registered Nurses, Midwives and Associated Medical Professionals, Dental Technicians and Assistant Pharmacists;
  • the employee has declined to take a suitable position to which they have been re-assigned for reasons of a medical condition or disability;
  • the employee has failed to fulfill the obligation to inform the employer of their incompatibility with the job or position assigned to them;
  • the employee is unsuitable for the job or position;
  • the employee is in a conflict of interest established by a valid document issued under the Anti-Corruption and Criminal Proceeds Forfeiture Act;
  • a pedagogical specialist within the meaning of the Preschool and School Education Act has been convicted by a court of law of a criminal offense of a general nature, irrespective of any subsequent exculpation;
  • an employee has not undergone a background check as provided under the Anti-Corruption and Criminal Proceeds Forfeiture Act.

Relative protection applies to female employees solely when their employment is terminated by a disciplinary dismissal for misconduct. In such cases, the Labor Code requires that the employer has sought and obtained a prior authorization from the labor inspectorate.

An additional condition for a pregnant female employee to have recourse to such protection is that she must submit to the employer a document in evidence of her condition, duly issued by the competent medical authorities.

No such protection applies and the employment relationship with this category of female employees can be terminated unilaterally by the employer either by, or without, an advance notice in each of the following scenarios:

• in the event of closure of the enterprise;
• in case an employee declines to follow the enterprise or the division thereof where she currently works if it is being relocated to another populated area or locale;
• in case where the job or position held by the employee must be vacated for purposes of reinstating an unlawfully dismissed employee who held said job or position prior to the appointment of the employee;
• in case of an objective impossibility for the performance of an employment contract;
• in case the employee is incarcerated for purposes of serving a court-imposed sentence;
• in case the employee’s employment contract is unilaterally terminated by the employer during their probationary period.

The last category of employees with recourse to protection under article 333 of the Labor Code are employees on a pregnancy or maternity leave.

In this case, protection is absolute and the only grounds on which an employment contract with this category of protected employees can be terminated is closure of the business.

In conclusion, the Labor Code clearly delineates the range of employees with recourse to protection in case of dismissal, the grounds for unilateral termination of an employment contract by the employer to which such protection applies, and the procedure of sidestepping it. Article 333 of the Code also presents scenarios for which protection against dismissal is absolute.

The exceptions to such protection are formulated by the legislator in several separate provisions that are not systematically listed in the general language regarding protection. This approach demonstrates a willingness on the part of the legislator to guarantee protection in the Code for those categories of employees whose medical condition or other objective reasons make them more vulnerable or ‘unwanted’ by the employer, by introducing prohibitions on, and restrictions to, a unilateral termination of their employment contract by the employer. Irrespective of the socially oriented approach and the objective nature of such protection, the Labor Code provides sanctions for employees acting in bad faith when invoking their protection against dismissal by providing exceptions in certain scenarios, fine-tuned in case law, thus enabling the employer to refer to those exceptions while having more leeway in organizing their business operation.