CHAPTER I - Conclusion of the individual labour contract
Art. 10. - An individual labour contract shall be a contract based on which a natural entity, called employee, undertakes to perform work for and under the authority of an employer, who is a natural or legal entity, in exchange for a pay, called wages.
Art. 11. - The clauses of the individual labour contract may not contain contrary provisions or rights below the minimum level set up by the laws or collective labour contracts.
Art. 12. - (1) An individual labour contract shall be concluded for an unlimited duration.
(2) As an exception, an individual labour contract may also be concluded for a limited duration, under the express terms stipulated by the law.
Art. 13. - (1) A natural entity shall be allowed to work after having turned 16 years of age.
(2) A legal entity may also conclude a labour contract, as an employee, after turning 15 years of age, based on his/her parents' or lawful guardians' consent, for activities in compliance with his/her physical development, aptitudes and knowledge, unless this places his/her health, development, and vocational formation under risk.
(3) Employment of persons under the age of 15 shall be prohibited.
(4) Employment of persons placed under court interdiction shall be prohibited.
(5) Employment in difficult, harmful, or dangerous work places shall only take place after a person has turned 18 years of age; such work places shall be set forth by Government decision.
Art. 14. - (1) For the purpose of the present code, the term employer shall mean a natural or legal entity that may employ, according to the law, labour force based on an individual labour contract.
(2) A legal entity may conclude individual labour contracts, as an employer, after having acquired that legal status.
"(3) A natural entity shall acquire the capacity to conclude individual labour contracts, as an employer, after having acquired the full exercise capacity."*)
Art. 15. - It is prohibited, under the sanction of absolute nullity, to conclude an individual labour contract for the purpose of performing an illicit or immoral work or activity.
"Art. 16. - (1) An individual labour contract shall be concluded based on the parties' consent, in written form, in Romanian. The employer has the obligation to conclude the individual labour contract in written form. Any employer who is a legal entity, any natural entity authorised to carry out an independent activity, as well as any family association shall be under the obligation to conclude an individual labour contract, in written form, prior to beginning any labour relationships."*)
(2) If an individual labour contract has not been concluded in written form, it shall be presumed it has been concluded for an unlimited period, and the parties may make the proof of the contract provisions and the work performed by means of any other piece of evidence.
(3) The work performed based on an individual labour contract shall give the employee length of service.
"Article 17. - (1) Prior to the conclusion of or amendment to an individual labour contract, the employer shall be under the obligation to inform the person applying for employment, or the employee, as applicable, about the general clauses he/she intends to include in the contract or to amend.
(11) The obligation to inform the person selected for employment or the employee shall be deemed to be met by the employer at the time of communicating his/her offer concerning the content of the individual labour contract or additional deed, as applicable.
(2) The person selected for employment or, as applicable, the employee, shall be informed regarding the following elements at least:"*)
a) the identity of the parties;
b) the work place or, in the absence of a stable work place, the provision that the employee may work at various places;
c) the employer's head office or, as applicable, residence;
"d) the position/occupation according to the specification of the Classification of occupations in Romania or other regulatory acts, as well as the job description;"*)
e) the risks typical of that position;
f) the date from which the contract is to take effect;
g) in the event of a labour contract for a limited duration or a temporary labour contract, the duration of such contracts;
h) the duration of the rest leave the employee is entitled to;
i) the conditions under which the contracting parties may give their notice and the duration of the latter;
j) the basic wages, other elements of wage revenues, as well as the payment periodicity of the wages the employee is entitled to;
k) the normal length of work, expressed in hours/day and hours/week;
l) the mention of the collective labour contract regulating the work conditions for the employee;
"m) the length of the trial period, as applicable."*)
(3) The elements in the information stipulated under paragraph
(2) shall also be found in the contents of the individual labour contract.
(4) Any change in any one of the elements stipulated under paragraph (2) during the progression of the individual labour contract shall require the conclusion of an additional deed to the contract, within 15 days from the employee being notified in writing, except for circumstances when such a change is made possible by the law or the applicable collective labour contract.
"(41) Upon negotiation, conclusion of or amendment to an individual labour contract, any one of the parties may be assisted by third parties, according to their own choices, in compliance with the confidentiality clause stipulated under paragraph (5)."**
(5) As regards the information provided to the employee prior to the conclusion of an individual labour contract, a confidentiality agreement between the parties may be reached.
"Art. 18. - (1) If the employee is to carry out his/her activity abroad, the employer shall be under the obligation to provide him/her, in due time, with the information stipulated under article 17 (2), as well as information regarding:"
a) the duration of the work period to be performed abroad;
b) the currency in which his/her wages are to be paid, as well as how the payment is to be made;
c) the payments in money and/or in kind related to the activity carried out abroad;
d) the climate conditions;
e) the main regulation in that country's labour legislation;
f) the local customs the non-observance of which might put the employee's life, freedom, or personal safety at risk.
"(11) The information stipulated under paragraph (1) a), b) and
c) shall have to be also listed within the content of the individual labour contract."*)
(2) Special laws regulating the typical work conditions abroad shall complete the provisions of paragraph (1).
"Art. 19. - If the employer does not comply with his/her obligation to inform the employee stipulated under articles 17 and 18, the employee shall be entitled to notify, within 30 days from the date of such obligation not being met, the competent court of law and ask for compensations corresponding to the prejudice caused to him/her as a result of the non-compliance by the employer with his/her obligation to inform the employee."*)
Art. 20. - (1) Apart from the general clauses stipulated under article 17, the parties may also negotiate and include other specific clauses in the individual labour contract.
(2) The following are deemed as specific clauses, without limiting them to this listing:
a) the clause on vocational formation;
b) the non-competition clause;
c) the mobility clause;
d) the confidentiality clause.
"Article 21. - (1) Upon conclusion of a labour contract or throughout its execution, the parties may negotiate and include in the contract a non-competition clause under which the employee shall be under the obligation, after contract termination, not to perform, for his/her own interest or that of a third party, an activity which is competing with the one performed for his/her employer, in exchange for a monthly non-competition emolument which the employer undertakes to pay during the entire noncompetition time period.
(2) The non-competition clause shall only take effect if the individual labour contract clearly stipulates the activities the employee is prohibited from performing from the date of contract termination, the amount of the monthly non-competition emolument, the time period for which the non-competition clause causes its effects, the third parties on behalf of whom the performance of activity is being prohibited, as well as the geographic area where the employee might be in actual competition with his/her former employer.
(3) The monthly non-competition emolument due to the employee shall not represent wages, shall be negotiated and at least 50% of the employee's average gross wages in the last 6 months prior to the date of termination of the individual labour contract, or, if the duration of the individual labour contract was less than 6 months long, of the average gross monthly wages due to him/her for the contract period.
(4) The non-competition emolument shall represent an expenditure made by the employer, shall be deductible upon the calculation of the taxable profit, and the tax shall be charged from the beneficiary natural entity, under the law.
Art. 22. - (1) The non-competition clause may cause effects for a period not exceeding 2 years from the termination date of the individual labour contract.
(2) The provisions of paragraph (1) shall not be applicable when the termination of the individual labour contract has taken place rightfully, except for the cases stipulated under article 56 d), f), g), h) and j), or when it has been based on the employer's initiative for reasons not pertaining to the employee's person."*)
Art. 23. - (1) The non-competition clause may not have as effect the employee being absolutely prohibited from exercising his/her profession or specialisation.
(2) Based on a notification by the employee or the territorial labour inspectorate, the competent court of law may diminish the effects of the non-competition clause.
Art. 24. - In the event of the employee having violated, in ill will, the non-competition clause, he/she may be obliged to return the emolument and, as applicable, to pay damages corresponding to the prejudice caused by him/her to the employer.
Art. 25. - Under the mobility clause, the parties in the individual labour contract shall stipulate that, considering the typical features of the work, the performance of job duties by the employee shall not take place in a stable work place. If this is the case, the employee shall benefit from additional pay in cash or in kind.
Art. 26. - (1) Under the confidentiality clause, the parties shall agree that, throughout the duration of the individual labour contract and after its termination, they will not transmit data or information they have become acquainted with during contract progression, under the terms set out by the internal regulations, the collective labour contracts or the individual labour contracts.
(2) The failure by either of the parties to comply with this clause shall entail the obligation of the party at fault to pay damages.
Art. 27. - (1) A person may only be employed based on a medical certificate, which finds that the person in question is fit to perform that work.
(2) The failure to comply with the provisions of paragraph (1) shall cause the individual labour contract to become null.
(3) If the employee submits the medical certificate after the time of conclusion of the individual labour contract, and the content of the certificate proves the person in question is fit to work, the contract thus concluded shall remain valid.
(4) The competence for and the procedure of issuing a medical certificate, as well as the sanctions applicable to the employer for employing or changing the place or kind of work without a medical certificate, shall be set forth by special laws.
(5) It shall be prohibited to require pregnancy tests when hiring a person.
(6) When employing a person in the fields of health, public catering, education and other fields set forth by regulatory acts, typical medical tests may also be required.
Art. 28. - A medical certificate shall also be mandatory under the following circumstances:
a) when restarting work after an interruption exceeding 6 months, for jobs with exposure to occupational harmful factors, and one year, in the other cases;
"b) in the event of a temporary or permanent transfer to another job or activity, if work conditions change;"*)
c) when beginning work, as far as employees hired on a temporary labour contract are concerned;
d) as far as apprentices, probationers, and school or college students are concerned, if they are to be trained per trades and professions, as well as when changing trade during the instruction period;
e) periodically, as far as persons are concerned who work under exposure to occupational harmful factors, according to the regulations of the Ministry of Health and Family;
f) periodically, as far as persons are concerned who perform activities showing a risk of transmitting diseases and who work in the food or animal-breeding sectors, in drinking water supply units, in children's communities, or in sanitary institutions, according to the regulations of the Ministry of Health and Family;
g) periodically, as far as persons who work in institutions without risk factors are concerned, by means of medical examinations differentiated per age, gender, and health condition, according to the regulations stipulated in the collective labour contracts.
Art. 29. - (1) An individual labour contract shall be concluded after a preliminary check of the vocational and personal abilities of the person applying for the job.
(2) The ways in which the check stipulated under paragraph (1) is to take place shall be set forth in the applicable collective labour contract, in the personnel - vocational or disciplinary - statutes, and in the internal regulations, unless the law stipulates otherwise.
(3) The purpose of the information requested, under any form, by the employer from the person applying for a job on the occasion of the preliminary check of abilities may only be for assessing his/her capacity to be in that position, as well as his/her vocational abilities.
(4) The employer may request information about the person applying for a job from his/her former employers, but only as regards the duties carried out and the length of that employment, and provided the person in question has been informed in advance.
Art. 30. - (1) In public institutions and authorities, and other budget institutions, personnel employment may only take place based on a contest or examination, as applicable.
(2) The vacant jobs appearing on the list of positions shall be put out for contest, depending on the needs of each institution stipulated under paragraph (1).
(3) If, for the contest organised for filling a vacancy, several candidates have not entered the contest, the employment shall be decided by an examination.
(4) The terms for organising a contest/examination and the manner in which it takes place shall be set out by the regulations approved in a Government decision.
Art. 31. - (1) In order to check the abilities of an employee, on the conclusion of the individual labour contract, a trial period not exceeding 30 calendar days may be established for executive positions, and not exceeding 90 calendar days for management positions.
(2) The check of professional abilities when employing disabled persons shall only be based on the trial period not exceeding 30 calendar days.
(3) As far as unskilled workers are concerned, the trial period shall only be exceptional and shall not exceed 5 work days.
"(4) Graduates of higher-education institutions shall be employed, at the beginning of the employment in their profession, based on a trial period not exceeding 6 months.
(41) Throughout the trial period or at the end of it, the individual labour contract may be terminated, based on a written notice, following the initiative of either party."*)
(5) During the trial period, an employee shall enjoy all the rights and have all the obligations stipulated in the labour legislation, the applicable collective labour contract, the internal regulations, as well as the individual labour contract.
Art. 32. - (1) During the progression of an individual labour contract, there may only be one trial period.
(2) As an exception, an employee may be subject to a new trial period if he/she starts up in a new position or profession with the same employer, or is to perform his/her activity in a work place under difficult, harmful, or dangerous conditions.
(3) The failure to inform the employee, before the conclusion of or amendment to the individual labour contract, as regards the trial period, within the delay stipulated under article 17 (4), shall cause the employer to lose the right of checking the employee's abilities by such means.
(4) The trial period shall represent length of service.
Art. 33. - It is prohibited to successively employ more than three persons for trial periods for the same position.
Art. 34. - (1) Each employer shall be under the obligation to establish a general book of employees.
(2) The general book of employees shall be first registered with the competent public authority, under the law, which has jurisdiction over the employer's residence or head office, respectively, after which date it shall become an official document.
"(3) The general book of employees shall be filled out in the sequence of employee hiring, and shall comprise the identification elements of all employees, their hiring dates, positions/occupations according to the specification of the Classification of occupations in Romania or other regulatory acts, the type of individual labour contract, and the date of individual labour contract termination."*)
(4) The general book of employees shall be kept at the employer's residence or head office, respectively, and it shall be placed at the disposal of the labour inspector or any other authority requesting it, under the law.
(5) At the employee's request, the employer shall be under the obligation to issue a document attesting to such employee's activity, length of service in his/her trade and speciality.
(6) In the event of the employer's activity termination, the general book of employees shall be submitted to the competent public authority, under the law, which has jurisdiction over the employer's residence or head office, respectively, as applicable.
(7) The methodology for preparing the general book of employees, the records to be made, as well as any other elements related to making them, shall be set forth by Government decision.
Art. 35. - (1) Any employee shall be entitled to cumulate several positions, based on individual labour contracts, benefiting from adequate wages for each of them.
(2) Exceptions to the provisions of paragraph (1) shall be the cases when the law stipulates incompatibilities for cumulating certain positions.
(3) Employees who cumulate several positions shall have to declare to each employer the place where he/she exercises the position he/she deems basic.
Art. 36. - Foreign and stateless citizens may be employed on an individual labour contract based on the work permit issued according to the law.
CHAPTER II - Execution of the individual labour contract
Art. 37. - The rights and obligations concerning the work relationships between an employer and an employee shall be established according to the law, by negotiations, under the collective labour contracts and individual labour contracts.
Art. 38. - Employees may not waive the rights acknowledged to them by the law. Any transaction the aim of which is to waive the rights recognised by the law to employees, or to limit such rights shall be null.
Art. 39. - (1) An employee's main rights shall be as follows:
a) the right to receive wages for the work performed;
b) the right to a daily and weekly rest;
c) the right to an annual rest leave;
d) the right to equal opportunities and treatment;
e) the right to dignity in his/her work;
f) the right to labour safety and health;
g) the right to access to vocational training;
h) the right to information and consulting;
i) the right to take part in the determination and improvement of work conditions and environment;
j) the right to protection as far as dismissal is concerned;
k) the right to collective and individual negotiation;
l) the right to participate in collective actions;
m) the right to establish or join a trade union.
(2) The employee's main obligations shall be as follows:
a) to obligation to accomplish his/her work rate or, as applicable, to meet his/her duties according to the job description;
b) the obligation to observe work discipline;
c) the obligation to observe the provisions of the internal regulations, the applicable collective labour contract, as well as the individual labour contract;
d) the obligation of faithfulness towards the employer in performing his/her job duties;
e) the obligation to comply with the steps of labour safety and health taken in the company;
f) the obligation to observe the job secret.
Art. 40. - (1) An employer's main rights shall be as follows:
a) to set forth the organisation and operation of the company;
"b) to set forth the adequate duties of each employee, under the law and/or under the applicable collective labour contract concluded at national level or at the level of an activity branch;"*
c) to issue mandatory orders to the employee on condition they are lawful;
d) to exercise the control over the way in which job duties are being carried out;
e) to find whether departures from the discipline have taken place and to apply adequate sanctions, under the law, to the applicable collective labour contract, and the internal regulations.
(2) An employer's main obligations shall be as follows:
a) to inform the employees on the work conditions and elements regarding the progress of work relationships;
b) to permanently ensure the technical and organisational conditions envisaged when the labour norms were drawn up, and the adequate work conditions;
c) to grant the employees all the rights deriving from the law, the applicable collective labour contract, and the individual labour contracts;
"d) to inform the employees, on a periodical basis, about the company's economic and financial position. The periodicity of communications shall be set out by negotiations under the applicable collective labour contract;"*)
e) to consult the trade union or, as applicable, the employees' representatives on the decisions likely to substantially affect their rights and interests;
f) to pay all the contributions and taxes which fall upon him/her, as well as to withhold and transfer the contributions and taxes due by the employees, under the law;
g) to establish the general book of employees and to make the records stipulated by the law;
h) to issue, on request, all the documents attesting to the petitioner's employee status;
i) to make sure the employees' personal data are confidential.
CHAPTER III - Amendments to the individual labour contract
Art. 41. - (1) The individual labour contract may only be amended based on the parties' consent.
(2) As an exception, a unilateral amendment to the individual labour contract shall only be possible in the cases and under the conditions stipulated by the present code.
(3) Amendments to the individual labour contract may refer to any one of the following elements:
a) contract duration;
b) work place;
c) kind of work;
d) work conditions;
e) wages;
f) work time and rest time.
Art. 42. - (1) The work place may be modified unilaterally by the employer by delegating or temporarily transferring the employee to a work place other than the one stipulated in the individual labour contract.
(2) During the delegation or temporary transfer, respectively, the employee shall preserve his/her position and all other rights stipulated in the individual labour contract.
Atacat prin Decizie nr. 352 din 20/03/2008
Art. 43. - The delegation shall represent a temporary exercise by the employee, based on the employer's order, of works or assignments corresponding to the job duties, outside his/her work place.
Art. 44. - (1) The delegation may be ordered for a period not to exceed 60 days, and may be extended, based on the employee's consent, by no more than 60 days.
(2) The delegated employee shall be entitled to the payment of transport and accommodation expenditures, as well as a delegation emolument, under the terms of the law or the applicable collective labour contract.
Art. 45. - The temporary transfer shall be the action ordering a temporary change in the work place, based on the employer's order, with another employer, for the purpose of performing some works in the latter's interest. Exceptionally, a temporary transfer may also mean a change in the kind of work, but only based on the employee's written consent.
Art. 46. - (1) A temporary transfer may be ordered for a period not to exceed one year.
(2) Exceptionally, the period of the temporary transfer may be extended for objective reasons requiring the employee's presence with the employer with whom the transfer was ordered, based on both parties' consent, every six months.
(3) An employee may only be free to decline the temporary transfer ordered by his/her employer exceptionally and for good personal grounds.
(4) A transferred employee shall be entitled to the payment of transport and accommodation expenditures, as well as a transfer emolument, under the terms of the law or the applicable collective labour contract.
Art. 47. - (1) The employer with whom the transfer has been ordered shall grant the rights due to the transferred employee.
(2) During the transfer period, the employee shall enjoy the more favourable rights, either those granted by the employer having ordered the transfer, or those granted by the employer with whom the transfer has been made.
(3) The employer ordering a transfer shall see that all steps are taken so that the employer with whom the transfer has been ordered fully complies and in due time with all the obligations towards the transferred employee.
(4) If the employer with whom the transfer has been ordered does not fully comply and in due time with all the obligations towards the transferred employee, such obligations shall be met by the employer having ordered the transfer.
(5) If there is a disagreement between the two employers, or none of them meets his obligations under the provisions of paragraphs (1) and (2), the transferred employee shall be entitled to return to his/her work place with the employer having transferred him/her, to take actions against any one of the two employers, and to request the forcible execution of the unmet obligations.
Art. 48. - An employer may also temporarily change the place and kind of work, without the employee's consent, in the case of a force majeure, as a disciplinary sanction, or as a measure aimed at protecting the employee, in the cases and under the terms stipulated by the present code.
CHAPTER IV - Suspension of the individual labour contract
Art. 49. - (1) The suspension of the individual labour contract may only take place rightfully, based on the parties' consent, or by unilateral action of either party.
(2) The suspension of the individual labour contract shall have as an effect the suspension of the performance of work by the employee and of the payment of wages by the employer.
"(3) Throughout the suspension, rights and obligations of the parties other than those stipulated under paragraph (2) may still be preserved provided they are stipulated by special laws, the applicable collective labour contract, the individual labour contracts, or the internal regulations."*)
(4) In the event of an individual labour contract being suspended because of an action for which the employee is to blame, the latter shall not enjoy any of the rights deriving from his/her employee's position throughout the suspension period.
Art. 50. - An individual labour contract shall be rightfully suspended under the following circumstances:
a) maternity leave;
b) leave for temporary disability;
c) quarantine;
d) mandatory military service;
"e) exercise of a position with an executive, legislative, or court authority, throughout the length of the office, unless the law stipulates otherwise;"**)
f) holding a paid management position in a trade union;
g) force majeure;
h) if the employee has been placed in custody, based on the terms
of the Criminal procedure code;
h) in other cases expressly stipulated by the law.
Art. 51. - (1) The individual labour contract may be suspended on the employee's initiative, in the following instances:
a) leave for raising a child up to the age of 2, or, in the case of a disabled child, up to the age of 3;
b) leave for looking after a sick child up to the age of 7 years or, in the case of a disabled child, for inter-current illnesses, up to the age of 18;
c) paternal leave;
d) vocational formation leave;
e) exercise of elected positions within vocational bodies established at the central or local level, for the entire length of the office;
f) participation in a strike;
g) Repealed.*)
"(2) The individual labour contract may be suspended if an employee has unmotivated absences, under the terms stipulated by the applicable collective labour contract, the individual labour contract, and the internal regulations."*)
Art. 52. - (1) The individual labour contract may be suspended on the employer's initiative in the following instances:
a) for the period of a preliminary disciplinary inquiry, under the law;
b) as a disciplinary sanction;
c) if the employer has filed a criminal complaint against his/her employee or the latter has been sent to trial for criminal actions incompatible with his/her position, until the court decree is final;
d) in the event of a temporary discontinuance of activity, without the termination of the labour relationships, especially for economic, technological, structural or the like reasons;
e) for the duration of the temporary transfer.
"(2) As far as the cases stipulated under paragraph (1) a), b) and
c) are concerned, if the person in question should be proved innocent, that employee shall resume his/her previous activity and, based on the standards and principles of contract civil liability, a compensation shall be paid to him/her equal to the wages and other rights he/she was deprived of during contract suspension."*)
Art. 53. - (1) For the duration of the temporary discontinuance of the employer's activity, the employees shall benefit from an emolument, paid from the wage fund, which may not be less than 75% of the basic wages corresponding to that work place.
(2) For the duration of the temporary discontinuance stipulated under paragraph (1), the employees shall be made available to the employer, who can order the activity to be resumed at any time.
Art. 54. - An individual labour contract may be suspended, based on the parties' consent, in the event of unpaid leaves for studies or for personal interests.
CHAPTER V - Termination of the individual labour contract
Art. 55. - An individual labour contract may be terminated as follows:
a) rightfully;
b) based on the parties' consent, on the date agreed upon by them;
c) as a result of one of the parties' unilateral will, in the cases and under the limitation terms stipulated by the law.
Section 1 - Rightful termination of the individual labour contract
Art. 56. - An individual labour contract shall be rightfully terminated:
a) on the death date of either the employee or employer, if he/she is a natural entity;
b) on the date a court decree declaring the death or placing the employee or the employer under interdiction, should he/she be a natural entity, if this causes business liquidation;
c) as a result of the dissolution of the employer, if the latter is a legal entity, from the date the legal entity ceases to exist;
"d) on the date the decision of retirement for full age, in-advance retirement, partial in-advance retirement, or retirement due to disability of the employee is communicated, under the law;"*)
e) as a result of the absolute nullity of an individual labour contract having been found, from the date the nullity was found, based on the parties' consent, or on a final court decree;
f) as a result of the admittance of the petition for reinstating a person dismissed on unlawful or wrong grounds to the position occupied by the employee, from the date the reinstatement court decree is final;
"g) as a result of a criminal sentence to be served in prison, from the date of such court decree being final;"*)
h) from the date of withdrawal, by the competent authorities or bodies, of the approvals, authorisations, or certifications necessary for exercising one's profession;
i) as a result of one's being prohibited from exercising a profession or a position, as a safety measure or complementary punishment, from the date the court decree ordering the interdiction was final;
j) on the expiry date of the deadline of an individual labour contract concluded for a limited duration;
k) withdrawal of the parents' or legal representatives' consent, as far as employees whose ages range between 15 and 16 years are concerned.
Art. 57. - (1) The failure to comply with any of the necessary lawful conditions for the valid conclusion of an individual labour contract shall entail its nullity.
(2) The finding of an individual labour contract nullity shall cause effects for the future.
(3) The nullity of an individual labour contract may be cancelled by the subsequent compliance with the terms imposed by the law.
(4) If a clause should be affected by nullity, since it establishes rights or obligations for the employees that contravene to some imperative lawful standards or applicable collective labour contracts, it shall be rightfully replaced by the applicable lawful or conventional provisions, and the employee shall be entitled to compensations.
(5) A person who has performed work based on a null individual labour contract shall be entitled to its pay, depending on how he/she accomplished his/her job duties.
(6) Such nullity shall be found and its effects shall be established, under the law, based on the parties' agreement.
(7) If the parties should not reach an agreement, the nullity shall be ordered by a court of law.
Section 2 - Dismissal
Art. 58. - (1) The dismissal shall represent the termination of the individual labour contract on the employer's initiative.
(2) The dismissal may be ordered for reasons pertaining to the employee's person or for reasons that do not pertain to the employee's person.
Art. 59. - It shall be prohibited the employees' dismissal:
a) based on criteria such as gender, sexual orientation, genetic characteristics, age, national origin, race, colour of the skin, ethnic origin, religion, political options, social origin, disability, family status or responsibility, trade union membership or activity;
b) for the exercise, under the law, of their right to strike and their trade union rights.
Art. 60. - (1) Employee dismissal may not be ordered:
a) for the duration of one's temporary labour disability, as established in a medical certificate according to the law;
b) for the duration of a quarantine leave;
c) for the duration an employed woman is pregnant, as long as the employer became acquainted with this fact before the issuance of such dismissal decision;
d) for the duration of one's maternity leave;
e) for the duration of one's leave for raising a child up to the age of 2, or, in the case of a disabled child, up to the age of 3;
f) for the duration of one's leave for looking after a sick child aged up to 7 years, or, in the case of a disabled child, for intercurrent illnesses, until he/she turns 18 years of age;
g) for the duration of one's military service;
h) for the duration of one's exercise of an elected position in a trade union body, except when the dismissal is ordered for a serious disciplinary departure or for repeated disciplinary departures by that employee;
i) for the duration of one's rest leave.
(2) The provisions of paragraph (1) shall not apply in cases of dismissal for reasons due to the employer's legal reshuffle or bankruptcy, under the terms of the law.
Section 3 - Dismissal for reasons pertaining to the employee's person
Art. 61. - An employer may order the dismissal for reasons pertaining to an employee's person under the following circumstances:
a) if that employee has perpetrated a serious departure or repeated departures from the work discipline regulations or those set by the individual labour contract, the applicable collective contract, or the internal regulations, as a disciplinary sanction;
"b) if the employee has been placed under police custody for a period exceeding 60 days, under the terms of the Criminal procedure code;"*)
c) if, following a decision by the competent medical examination authorities, the physical and/or mental incapacity of that employee has been found, which prevents him/her from accomplishing the duties related to his/her current work place;
d) if that employee should not be professionally fit for his/her current position;
"e) if an employee meets the standard age limit terms for retirement and has made his/her full social security payments, and has not applied for retirement under the law."**)
Art. 62. - (1) If the dismissal should take place for one of the reasons stipulated under article 61 b)-d), the employer shall be under the obligation to issue the dismissal decision within 30 calendar days from the date of the dismissal cause being found.
"(11) If the dismissal should be ordered for the reason stipulated under article 61 a), the employer may only issue the dismissal decision in compliance with the provisions of articles 263-268."**)
(2) Such decision shall be issued in writing and, under the sanction of absolute nullity, it shall be motivated de-facto and dejure, and comprise details concerning the delay within which it may be appealed and the court where the appeal may be filed.
Art. 63. - (1) A dismissal for a serious departure or repeated departures from the work discipline regulations may only be ordered after the employer has completed a preliminary disciplinary inquiry and within the delays set by the present code.
"(2) An employee's dismissal for the ground stated under article 61 d) may only be ordered after his/her preliminary evaluation, according to the evaluation procedure set forth by the applicable national or branch collective labour contract, as well as the internal regulations."**)
Art. 64. - (1) If a dismissal should be ordered for the reasons stipulated under article 61 c) and d), as well as when an individual labour contract has rightfully ceased under article 56 f), the employer shall be under the obligation to suggest to that employee other vacant positions in the company, consistent with his/her professional training or, as applicable, his/her work capability assessed by a labour medicine doctor.
"(2) If the employer has no vacant positions according to paragraph (1), he/she shall be under the obligation to ask the territorial employment agency for support in reassigning the employee in question according to his/her professional training or, as applicable, his/her work capability assessed by a labour medicine doctor.
(3) Such employee shall have at his/her disposal a delay of 3 workdays from the employer's communication under the provisions of paragraph (1) to expressly state his/her consent regarding the new job offered.
(4) If that employee does not state expressly his/her consent within the delay stipulated under paragraph (3), as well as after the case has been notified to the territorial employment agency under paragraph (2), the employer may order that employee's dismissal."*)
(5) In the event of a dismissal for the reason stipulated under article 61 c), such employee shall benefit from a compensation, under the terms set forth in the applicable collective labour contract or in the individual labour contract, as applicable.
Section 4 - Dismissal for reasons not pertaining to the employee's person
Art. 65. - (1) The dismissal for reasons not pertaining to the employee's person shall represent the termination of an individual labour contract, caused by the suppression of that employee's position due to economic difficulties, technological changes, or activity reshuffle.
(2) The suppression of a position shall be under the obligation to be effective and have an actual serious cause, from amongst those stipulated under paragraph (1).
Art. 66. - The dismissal for reasons not pertaining to the employee's person may be individual or collective.
Art. 67. - The employees dismissed for reasons which are not pertaining to their persons shall benefit from active steps for unemployment control, and may benefit from compensations under the terms stipulated by the law and the applicable collective labour contract.
Section 5 - Collective dismissal
Art. 68. - By collective dismissal one shall understand the dismissal, within 30 calendar days, ordered for one or more reasons from amongst those stipulated under article 65 (1), of:
"a) at least 10 employees, if the employer who is dismissing them has more than 20 employees and less than 100 employees;"*)
b) at least 10 % of the employees, if the employer who is dismissing them has at least 100 employees but less than 300 employees;
c) at least 30 employees, if the employer who is dismissing them has at least 300 employees.
"Article 69. - As far as collective dismissals are concerned, the employer shall be under the following obligations:
a) with a view to reaching a joint position, to start consultations with the trade union or, as applicable, the employees' representatives, referring to the methods and means for avoiding collective dismissals or reducing the number of employees affected, and for mitigating the consequences of such dismissals by resorting to social measures essentially favouring the support for the retraining or vocational re-conversion of dismissed employees;
b) to make available to the trade union which has members in that company or, as applicable, to the employees' representatives all the relevant information about the collective dismissal, with a view to receiving proposals from them.
Art. 70. - (1) The employer shall be under the obligation to notify in writing to the trade union or, as applicable, the employees' representatives his/her intent of collective dismissal, at least 30 calendar days before the issuance of the dismissal decisions.
(2) The notification of the collective dismissal intent shall comprise the following information:"*)
a) the total number and categories of employees;
b) the reasons causing the dismissal;
c) the number and categories of employees to be affected by the dismissal;
d) the criteria envisaged, according to the law and/or the collective labour contracts, for establishing the dismissal priority order;
e) the steps considered for limiting the number of dismissals;
"f) the steps for mitigating the consequences of the dismissal and the compensations to be granted to the employees subject to dismissal, according to the provisions of the law and/or the applicable collective labour contract;"*)
g) the date on which, or the period during which, the dismissals shall take place;
h) the delay within which the trade union or, as applicable, the employees' representatives may make proposals for avoiding dismissals or diminishing the number of employees dismissed.
"(3) The employer shall be under the obligation to notify the notice stipulated under paragraph (2) to the territorial labour inspectorate and the territorial employment agency on the same date as the notification sent to the trade union or, as applicable, to the employees' representatives.
Art. 71. - (1) The trade union or, as applicable, the employees' representatives may propose to the employer steps for avoiding the dismissals or diminishing the number of employees dismissed, within 15 calendar days from the date of receipt of the notice.
(2) The employer shall be under the obligation to reply, in writing and stating good grounds, to the proposals forwarded under the provisions of paragraph (1), within 5 calendar days from their receipt.
(3) If the aspects related to the collective dismissal under consideration may not be solved within the delay stipulated under article 70 (1), the territorial labour inspectorate may order its extension by no more than 10 calendar days, at the request of either party."**)
"Article 72. - (1) The employer having ordered collective dismissals may not employ new people to fill in the positions of the employees dismissed, for a period of 9 months from the date of their dismissal.
(2) If, during this period, the employer resumes the activities the termination of which had led to collective dismissals, he/she shall be under the obligation to send a written communication in that respect to the employees having been dismissed and to re-employ them in the same positions which they had previously, without an examination or contest, or trial period.
(3) Such employees shall have at their disposal a delay not exceeding 10 workdays from the date of the employer's communication, as stipulated under paragraph (2), in order to give their express consent as regards the jobs being offered to them.
(4) Unless the employees who are entitled to be re-employed under paragraph (2) give their express consent within the delay stipulated under paragraph (3) or if they refuse the job offered, the employer may hire new people for the vacant jobs."*)
Section 6 - Right to notice
Art. 73. - (1) The persons dismissed under article 61 c) and d), article 65 and article 66 shall benefit from the right to a notice which may not be less than 15 workdays.
(2) An exception to the provisions of paragraph (1) shall be represented by the persons dismissed under article 61 d), who are on a trial period.
"(3) If, during the notice period, the individual labour contract should be suspended, the notice delay shall be suspended accordingly, except for the case stipulated under article 51 (2)."**)
Art. 74. - (1) The dismissal decision shall be communicated to the employee in writing and shall contain by all means:
a) the reasons for the dismissal;
b) the notice duration;
"c) the criteria for establishing the priority order, according to article 70 (2) d), only as far as collective dismissals are concerned;"*
d) the list of all available positions in the company and the delay within which the employees are to choose a vacant position, under the terms of article 64.
(2) Repealed.**)
Art. 75. - The dismissal decision shall cause effects from the date of it being notified to the employee. Section 7 Control of and sanctions for unlawful dismissals
Art. 76. - A dismissal ordered in non-compliance with the procedure stipulated by the law is struck by absolute nullity.
Art. 77. - In the event of a labour conflict, an employer may not resort, before a court of law, to other de facto or de jure reasons than the ones stated in the dismissal decision.
Art. 78. - (1) If the dismissal has not been based on good grounds or has been unlawful, the court shall order its cancellation and force the employer to pay a compensation equal to the indexed, increased, and updated wages and the other rights the employees would have otherwise benefited from.
(2) At the employee's request, the court having ordered the cancellation of the dismissal shall restore the parties to the status existing before the issuance of the dismissal document.
Section 8 - Resignation
Art. 79. - (1) By resignation one shall understand the unilateral act of will of an employee who, by means of a written notification, informs his/her employer about the termination of the individual labour contract, after a notice delay has elapsed.
(2) The employer's refusal to record the resignation shall give the employee the right to prove it by any means of evidence.
(3) An employee shall be entitled not to motivate his/her resignation.
(4) The notice delay shall be the one agreed upon by the parties in the individual labour contract or, as applicable, the one stipulated in the applicable collective labour contracts, and may not exceed 15 calendar days for employees in executive positions, or 30 calendar days for employees in management positions, respectively.
(5) Throughout the notice duration, the individual labour contract shall continue to take full effects.
(6) If, during the notice period, the individual labour contract should be suspended, the notice delay shall be suspended accordingly.
(7) An individual labour contract shall cease on the date of expiry of the notice delay or on the date the employer waives that delay entirely or partially.
(8) An employee may resign without a notice if his/her employer has not met his/her obligations under the individual labour contract.
CHAPTER VI - Individual labour contract for a limited duration
Art. 80. - (1) As an exception to the rule stipulated under article 12 (1), employers may be permitted to employ, for the purpose and under the terms of the present code, personnel based on individual labour contracts for a limited duration.
(2) An individual labour contract for a limited duration may only be concluded in a written form, expressly stating the duration it is being concluded for.
(3) An individual labour contract for a limited duration may be extended even after the expiry of the original delay, based on the parties' written consent, but only within the delay stipulated under article 82 and no more than two times consecutively.
"(4) No more than 3 successive individual labour contracts for a limited period may be concluded between the same parties, and only within the delay stipulated under article 82.
(5) Individual labour contracts for a limited period concluded within 3 months from the termination of a prior labour contract for a limited period shall be deemed as successive contracts."*)
Art. 81. - An individual labour contract may only be concluded for a limited period in the following instances:
a) replacement of an employee in the event his/her labour contract is suspended, except when such employee participates in a strike;
b) a temporary increase in the employer's activity;
c) progression of some seasonal activities;
d) if it is concluded based on some lawful provisions issued with a view to temporarily favouring certain categories of unemployed persons;
"d1) hiring of a person looking for a job who, within 5 years from the hiring date, meets the terms of retirement for age limit;
d2) occupying an eligible position within trade, employer's or nongovernmental organisations, for the duration of the term of office;
d3) hiring of retired persons who, under the law, may cumulate the pension and the wages;
e) in other instances expressly stipulated by special laws or for the progression of works, projects, programmes, under the terms set forth by the national and/or branch collective labour contract.
Art. 82. - (1) An individual labour contract for a limited duration may not be concluded for a period exceeding 24 months."*
(2) If an individual labour contract for a limited duration is concluded with a view to replacing an employee whose individual labour contract has been suspended, the contract duration shall expire when the reasons having caused the suspension of the individual labour contract of the full employee have ceased to exist.
Art. 83. - An employee hired based on an individual labour contract for a limited duration may be subject to a trial period, which shall not exceed:
a) 5 workdays, for a duration of the individual labour contract not to exceed 3 months;
b) 15 workdays, for a duration of the individual labour contract ranging between 3 and 6 months;
c) 30 workdays, for a duration of the individual labour contract exceeding 6 months;
d) 45 workdays, in the case of employees hired for management positions, for a duration of the individual labour contract exceeding 6 months.
"Art. 84. - (1) Upon termination of the third successive individual labour contract for a limited duration, as stipulated under article 80 (4), or upon expiry of the delay set forth under article 82 (1), an employee shall be hired for that position based on an individual labour contract for an unlimited duration."**)
(2) The provisions of paragraph (1) shall not be applicable:
a) when an individual labour contract for a limited duration is concluded with a view to temporarily replacing a missing employee, if a new cause for suspending his/her contract comes up;
b) if a new individual labour contract for a limited duration is concluded with a view to doing some urgent exceptional works;
c) if the conclusion of a new individual labour contract for a limited duration proves necessary for the reasons stipulated under article 81 e);
d) if the individual labour contract for a limited duration has been terminated on the employee's initiative or the employer's initiative, for serious misconduct or repeated misconduct by the employee.
Art. 85. - The employers shall be under the obligation to inform the employees hired based on individual labour contracts for a limited duration about the vacant positions or those to become vacant, which correspond to their vocational training, and to grant them access to such positions under equal terms as the employees hired based on individual labour contracts for an unlimited duration. Such information shall be made public in an announcement posted at the employer's head office.
Art. 86. - Unless otherwise stipulated in the present code, the provisions of the law, as well as those of the collective labour contracts applicable to employees working on individual labour contracts for an unlimited duration shall equally apply to employees working on individual labour contracts for a limited duration.
CHAPTER VII - Work through a temporary labour agent
Art. 87. - (1) Work through a temporary labour agent, hereafter called temporary work, shall be the work performed by a temporary employee who, on order by the temporary labour agent, performs work in favour of a user.
(2) A temporary employee shall be the person hired by an employer who is a temporary labour agent, and placed at the disposal of a user for the duration necessary for carrying out certain precise and temporary duties.
(3) A temporary labour agent shall be a trading company authorised by the Ministry of Labour and Social Solidarity, which temporarily makes available to a user the skilled and/or unskilled personnel employed by it and remunerated for this purpose. The terms for a temporary labour agent's establishment and functioning, as well as its licensing procedure, shall be set forth by Government decision.
(4) A user shall be an employer at the disposal of whom a temporary labour agent places a temporary employee in view of carrying out certain precise and temporary duties.
Art. 88. - A user may only call upon temporary labour agents for carrying out a precise and temporary duty, called temporary work assignment, and only in the following instances:
a) to replace an employee whose individual labour contract has been suspended, for the suspension duration;
b) to perform some seasonal activities;
c) to perform some specialised or occasional activities.
Art. 89. - (1) A temporary work assignment shall be established for a delay which may not exceed 12 months.
(2) The duration of a temporary work assignment may only be extended once for a period which, added to the original duration of the assignment, may not exceed a period of 18 months.
(3) The terms under which the duration of a temporary work assignment may be extended shall be stipulated in the temporary labour contract or shall make the object of an additional deed to that contract.
Art. 90. - (1) The temporary labour agent shall place at the user's disposal an employee hired based on a temporary labour contract, on the basis of an availability contract concluded in writing.
(2) The availability contract shall comprise:
a) the reason for which a temporary employee is needed;
b) the delay of the assignment and, if applicable, provisions for amending the delay of the assignment;
c) the typical characteristics of the position, especially the necessary skills, the place of completing the assignment and the work schedule;
d) actual work conditions;
e) the individual protective and work outfit the temporary employee must use;
f) any other services and facilities for the benefit of the temporary employee;
g) the value of the contract the temporary labour agent benefits from, as well as the wages the employee is entitled to.
(3) Any clause prohibiting the user from hiring the temporary employee after the assignment has been completed is null.
Art. 91. - (1) Temporary employees shall have access to all the services and facilities provided by the user, under the same terms as the latter's other employees.
(2) The user shall provide the temporary employee with individual protective and work outfit, except when, based on the availability contract, this is the responsibility of the temporary labour agent.
Art. 92. - The user shall not be allowed to benefit from the services of a temporary employee, if his goal is to replace thus one of his employees, whose labour contract has been suspended as a result of him/her participating in a strike.
Art. 93. - (1) The temporary labour contract is a labour contract which shall be concluded in writing between the temporary labour agent and the temporary employee, as a rule for the duration of an assignment.
(2) A temporary labour contract shall state, apart from the elements stipulated under articles 17 and 18 (1), the terms under which the assignment is to take place, the assignment duration, the user's identity and head office, as well as the modalities for paying the temporary employee.
Art. 94. - (1) A temporary labour contract can also be concluded for several assignments, provided the delay stipulated under article 89 (2) is observed.
(2) Between two assignments, a temporary employee shall be at the disposal of the temporary labour contract and benefit from wages paid by the agent, which cannot be lower than the minimum national gross wages.
(3) For each new assignment, the parties shall conclude an additional deed to the temporary labour contract, stating all the elements stipulated under article 93 (2).
(4) The temporary labour contract ceases at the end of the last assignment it has been concluded for.
Art. 95. - (1) Throughout the duration of the assignment, the temporary employee shall benefit from the wages paid by the temporary labour agent.
(2) The wages received by the temporary employee for each assignment shall not be lower than the ones received by the user's employee who performs the same work or one similar to the one of the temporary employee.
(3) If the user has no such employee, the wages received by the temporary employee shall be established by considering the wages of a person employed based on an individual labour contract and who performs the same work or a similar one, as stipulated in the collective labour contract applicable to the user.
(4) The temporary labour agent shall be the one who retains and transfers all the contributions and taxes due by the temporary employee to state budgets and pays for him all the contributions due according to the law.
(5) If, within 15 calendar days from the date the obligations concerning the payment of the wages and those concerning contributions and taxes have become due and exigible, and the temporary labour agent does not comply with them, they shall be paid by the user, based on the request by the temporary employee.
(6) The user who has paid the amounts due according to paragraph (5) shall subrogate, for the amounts paid, the rights of the temporary employee against the temporary labour agent.
Art. 96. - The temporary labour contract can set up a trial period for assignment completion, the duration of which is set depending on the user's request, but it shall not exceed:
a) two workdays, if the temporary labour contract is concluded for a period shorter than or equal to a month;
b) three workdays, if the temporary labour contract is concluded for a period between one and two months;
c) five workdays, if the temporary labour contract is concluded for a period exceeding two months.
Art. 97. - (1) Throughout the assignment, the user shall be responsible for providing the work conditions to the temporary employee, in compliance with the legislation in force.
(2) The user shall notify at once the temporary labour agent about any labour accident or occupational disease he has learnt about and the victim of which has been a temporary employee placed at his disposal by the temporary labour agent.
Art. 98. - (1) At the end of the assignment, the temporary employee can conclude an individual labour contract with the user.
(2) If the user should hire, after an assignment, a temporary employee, the duration of the assignment completed shall be taken into consideration when calculating his wages, as well as the other rights stipulated by the labour legislation.
(3) If the user continues to benefit from the temporary employee's work without concluding an individual labour contract or extending the availability contract, it shall be deemed that an individual labour contract for an unlimited duration has been concluded between that temporary employee and the user.
Art. 99. - The temporary labour agent who dismisses the temporary employee before the delay stipulated in the temporary labour contract, for reasons other than disciplinary ones, shall have the obligation to comply with the provisions of the law on the termination of the individual labour contract for reasons not related to the employee's person.
Art. 100. - Unless otherwise stipulated in the present chapter, the provisions of the law and the provisions of the collective labour contracts applicable to employees hired based on individual labour contracts for unlimited duration with the user shall also apply to temporary employees for the duration of their assignment with him.
CHAPTER VIII - Part-time individual labour contract
Art. 101. - (1) An employer may hire employees with a work schedule corresponding to a rate fraction of at least two hours a day, by means of individual labour contracts for an unlimited duration or for a limited duration, called part-time individual labour contracts.
(2) A part-time individual labour contract shall only be concluded in writing.
(3) The weekly work duration for an employee hired based on a part-time individual labour contract shall be lower than that of a comparable full-time employee, without being lower than 10 hours.
(4) A comparable employee shall be a full-time employee of the same employer, who performs the same activity or one similar to that of the employee hired on a part-time individual labour contract. When no comparable employee exists, the provisions of the collective labour contract applicable to that employer or the provisions of the legislation in force shall apply.
Art. 102. - (1) A part-time individual labour contract shall comprise, apart from the elements stipulated under article 17 (2), the following:
a) the duration of work and distribution of work schedule;
b) the terms under which the work schedule may be modified;
c) the interdiction to work extra hours, except for a force majeure or other urgent works meant to prevent accidents or to remove their consequences.
(2) If, in a part-time individual labour contract, the elements stipulated under paragraph (1) are not stated, the contract shall be deemed to be full-time.
Art. 103. - (1) An employee hired on a part-time labour contract shall enjoy all the rights of full-time employees, under the terms stipulated by the law and the applicable collective labour contracts.
(2) The wages shall be proportional to the time actually worked, in relation to the rights established for a normal work schedule.
(3) Repealed.*)
Art. 104. - (1) As far as possible, the employer shall take into consideration the employees' requests to be transferred either from a full-time position to a part-time position, or from a part-time position to a full-time position, or to have an increased work schedule, should this opportunity occur.
(2) The employer shall notify his/her employees in due time regarding the availability of part-time or full-time positions, in order to facilitate transfers from part-time to full-time positions and vice versa. This notification shall be done by means of an announcement posted at the employer's head office.
(3) As far as possible, the employer shall provide access to jobs with work fractions at all levels.
CHAPTER IX - Home-based work
Art. 105. - (1) Those employees who carry out, at their home, the assignments typical of their positions shall be deemed home-based employees.
(2) With a view to completing their job duties, home-based employees shall set up their own work schedule.
(3) The employer shall be entitled to check the activity of a homebased employee, under the terms set forth by the individual labour contract.
Art. 106. - An individual labour contract for home-based work shall only be concluded in a written form and shall comprise, apart from the elements stipulated under article 17 (2), the following:
a) the express mention that the employee shall work at home;
b) the schedule during which the employer shall be entitled to check his/her employee's activity, and the actual manner of such control;
c) the employer's obligation to ensure transport, to and from the employee's residence, as applicable, of the raw materials and other materials, which such employee uses in his/her activity, as well as the finished products made by him/her.
Art. 107. - (1) A home-based employee shall enjoy all the rights stipulated by the law and the collective labour contracts applicable to employees whose work place is at the employer's office.
(2) The collective labour contracts may also set forth other typical terms for home-based work.
