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Previous steps of disciplinary sanction

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Labor legislation requires mandatory completion of several steps, before applying a disciplinary sanction.

According to art. 251 par. (1) Labor Code, any sanction with the exception of written notice, shall not be ordered without conducting a prior disciplinary research.

Although the law is quite clear regarding the obligation to perform a preliminary disciplinary investigation before applying disciplinary sanctions, in practice are common the cases where employers apply disciplinary sanctions without a prior disciplinary research.

In this cases, if the employee contest the decision before a court, he will have many chases to obtain the annulment of the decision.

If the sanction applied is the end of the labor contract due to disciplinary misbehavior, the consequence for the employer who conducts disciplinary investigation is the sanction to pay an indemnity, compensation equivalent to the salaries which the employee would have received, from the time of dismissal to the effective reintegration/until the court decision becomes final (depending on the employee request).

For the correct application of disciplinary sanctions, except the written notice, the employer must ensure that the disciplinary research file on which the sanction is applied, contain at least these acts, whose enumeration is done chronologically:

  1. The report of the disciplinary misbehavior;
  2. The decision in which the disciplinary committee is named and authorized to do the disciplinary research;
  3. The convocation of the employee to disciplinary investigation;
  4. The Minutes of disciplinary investigation;
  5. The Committee’s disciplinary research report;
  6. The Decision containing the disciplinary measure.

Insofar if any of these acts doesn’t exist or the employer failed to go through all the disciplinary research steps, a court will easily annul the decision containing the disciplinary sanction.

Any error that the employer makes in the process of disciplinary research will be used by the employee to maximize his chances of success in a possible litigation. Moreover, for the judge is much easier to annul the decision of sanctioning failure to comply formality required by law, without getting into the analysis of the problem.

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