Romania: New employment regulations regarding child care leave & instructive case law

Employment legislation in Romania continues to be subject of discussions as lawmakers move to adapt legislation to the needs of both employers and employees.

I. New rules regarding child care leave

The most important changes that impact employers are the following regulations:

(i) Employers are now obliged to approve the obligatory child care leave of at least one month for the other parent that has not requested parental leave;

(ii) employees who are obliged to take at least one month of child care leave are protected from dismissal during such leave as well as for six months following their return to work.

For the employee who chooses to take parental leave, such protection against dismissal is also granted during such leave and for six months following his/her return to work.

(iii) employees are obliged to notify their employer in writing of the date on which they will return from child care leave 30 days in advance

Employers may include such mandatory notification obligation in their company policy in order to ensure that employees comply with it. As regards employees who are currently in child care leave, such obligation may be communicated to them by the employer to ensure their compliance.

II. Prohibition of damages clauses in employment agreements

The Supreme Court of Romania has issued a ruling on including penalty clauses in individual employment agreements, i.e. clauses that monetise in advance damage accruing to the employer caused by the employee in connection to his/her job duties and for which the employee is at fault. The court expressly stated that such clauses are prohibited and are null if included in an employment agreement or an addenda to an employment agreement.

The decision becomes mandatory as of its publication date in the Official Gazette of Romania.

If an employer ascertains that one of its employees has caused damage in relation to his/her work duties for which he/she is at fault, the employer will be able to demand that the employee pay damages based on an evaluation report in compliance with the law, i.e. Art. 254 et seq. Labour Code or to file a legal claim with the competent courts of law.

III. A first-timer: injunction order (Romanian: ordonanță președințială) in a labour case

Not only lawmakers have made headlines, the Appeal Court of Timisoara has also turned heads with its recent admission of an unprecedented injunction claim in an employment case.

An injunction is a special procedure regulated by the Code of Civil Procedure by means of which the interested person requests the court to order temporary measures in urgent cases to preserve a right that would be damaged by a delay, or to prevent imminent damage that would be irreparable.

The particularity of the case at hand was that, in first court, the Labour Union petitioned the court to ascertain the termination by law of the employment agreements of employees on the date on which the employees reached 65 years of age (i.e. the standard age for retirement in Romania). Such claim was admitted by the Timisoara Tribunal, which ascertained the termination of such employment agreements.

Afterwards, the employer filed an injunction petition and argued that the enforcement of such order would jeopardise its activity (the employer was a higher educational institution), especially the completion of the university year, as well as the rights of the professors whose contracts were to be considered terminated. The Timisoara Court of Appeal upheld the employer’s arguments and suspended the enforcement of the order until a decision was reached on the appeal.

Although no practice tip can be derived from this decision, the most important aspects are that the court took the activity of the employer into consideration and that in some cases the de jure enforcement of a court order may cause more harm than good to employees.