Considerations Regarding Legal and Real Grounds for Dismissal

• Author: Luca Iamandi, PhD - Madalina Medelet
• Pages: 1-3

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Professor Luca Iamandi, PhD - "Al. I. Cuza" Police Academy

Madalina Medelet - A.N.I. - D.G.O.R.U

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Article 58 of Labour Code defines dismissal as the termination of collective bargaining by both the employer and the employee. This may occur on grounds that may or may not depend on the employee. Article 61 of Labour Code sets forth the circumstances in which the employer is entitled to dismiss the employee due to the latter's personal reasons while Article 65, paragraph 1 prescribes dismissal on grounds that do not depend on the employee as the termination of collective bargaining as a result of job cancellation which is not whatsoever related to the employee.

The dismissal decision takes immediate effect from the moment in which it is communicated to the employee (Article 75 of Labour Code); the notice shall be written and is subject to cancellation unless it contains the following:

a) grounds for dismissal

b) the duration of the notice

c) the prioritization criteria in case of collective dismissal

d) the list of all available positions¹ and the deadline for employees to apply for such a vacancy² (Article 74 of Labour Code)

The written form of the dismissal decision is an "ad validitatem"³ condition. As far as the contents of the dismissal decision is concerned, the Labour Code mentions both categories of legal and real grounds⁴, according to Article 74 of Labour Code, paragraph 1 letter a.Page 2

The dismissal decision is a unilateral act, the manifestation of the employer's will. Furthermore, the employer does not need to address to court or to other institutions in order to terminate legal work relations with a certain employee. But the employee is entitled to challenge the dismissal decision in court if he/she considers that it is not legally grounded. The employee is legally and constitutionally entitled to defend himself/herself against all unlawful or ungrounded abuses that may hinder his/ her ability to perform. The employee may use this right only if he is informed both of the real and legal grounds which the employer used when deciding to dismiss him/ her and the procedural means he/ she may appeal to in order to contest the decision. Thus, the dismissal decision shall be written and shall become void unless it has real⁵ and legal grounds⁶, and it contains the period when is subject to contestation and the court where it may be contested (Article 62, paragraph 2 of Labour Code)⁷. The dismissal decision shall necessarily contain the real and the legal grounds that resulted in the actual dismissal, namely the explicit and grounded reasons, the description of the situation that led to dismissal as a legal means.

The dismissal decision in...