Dismissal for professional inadequacy

Dismissal for professional inadequacy is provided by art. 61 lit. d) of the Labor Code which provides that “the employer may order dismissal for reasons related to the employee if the employee does not correspond with the professional job in which he is employed.”

Law no. 40/2011 brought amendments to the Labor Code, introducing the following content to art. 63 paragraph (2): “employee dismissal on the grounds specified in Art. 61 letter d) may be ordered only after preliminary assessment of the employee, according to the assessment procedure established by the applicable collective labor agreement or, in its absence, by the internal regulation“.

The legislative amendment has allowed the employer to implement the assessment procedure by establishing it through the Collective Labor Agreement or through the internal regulations of the company.

In order to assure the correct application of the legal provisions, we must distinguish between professional non-correspondence and disciplinary offences committed by the employee. The fault of the employee is not listed among the necessary conditions for dismissal for professional inadequacy, the lack of fault being even a condition of nonconformity.

A number of objective and subjective elements must be met in order for professional inadequacy to represent a reason for dismissal. For example, aspects that justify ignorance, repeated mistakes, an accidental mistake not being enough, either with fault or without.

An important element that helps define professional inadequacy is the job description. Within it, both employee responsibilities, and objectives for each employee will be mentioned. Employee behavior at work, emerging from the sphere of disciplinary offenses, may indicate whether the employee is compatible or incompatible with the job. Soft skills, defined as personal attributes that enable a person to interact effectively and harmoniously with others, along with tasks and set goals, as well as the methods of fulfilling said goals are necessary elements in order to define professional inadequacy.

A difference between professional training and skills of the employees must also be made. Only the latter can be taken into account when assessing the inadequacy. There is no obligation for the employee to attend training courses, as this is not a reason for termination of employment relations.

A mention is needed. Dismissal for professional inadequacy can be ordered for only one deed, if the procedures is followed and if the nonconformity conditions are proved.

In order to eliminate subjectivity, introducing performance goals in job description is required.

Legislative provisions allow the employer to determine the procedure for termination of employment for professional inadequacy. Freedom is not absolute however, the legislature obliging employers to introduce such procedures in the Collective Labor Agreement or Internal Regulations. The procedure may be provided in an internal norm of the employer; what remains essential is the idea that said norm be considered a distinct source of law.

The Collective Labor Agreement and the Regulation are considered such acts, while individual employment Agreements do not fall into this category. As such, in case the procedure is mentioned in an Individual Labor Agreement or in an addendum to the Individual Labor Agreement, it shall be considered nonexistent.

Regarding the elements of procedure, it is provided that setting goals for employees is a right and not an obligation of the employer. Second, certain elements are left solely to the discretion of the employer.

 In order for the procedure to be as objective as possible, it has been suggested that a small commission be established, while ideally having a member which is a trade union representative or a representative of the employees. Also, allowing the possibility of appealing against the decision issued by the Commission would provide an additional element of objectivity.

The deadline for issuing the decision begins from the date of the discovery of the nonconformity, discovery attested after the evaluation finalized in a report.

It should be noted that the preliminary assessment is a condition prior to the dismissal, not to be confused with a periodic assessment that the employer may perform throughout the entire company. Periodic evaluation focuses on competence and not on attributes. A negative result of a periodic evaluation cannot be considered sufficient to justify termination of employment for professional inadequacy, the degree of seriousness of the inadequacy needing to be assessed.

The above-mentioned imply the necessity of establishing two separate assessments, periodic evaluation and assessment for professional inadequacy.

When it comes to attacking the decision for termination of the labor Agreement for professional inadequacy, the court finds that the employee cannot challenge the performance objectives in concrete terms, as such matters involve a technical evaluation that can be hard to invalidate by a court if there is no evidence of non-fulfillment of the evaluation. The question that courts ask is how far can employees go when they contest the assessment itself? The answer has to be sought in each case.

A final problem regards the term for the application of the sanction. Thus, the ICCJ reasoning regarding disciplinary offenses has been followed, a 30 days deadline starting from the date of the discovery of the professional inadequacy being used. Given that noncompliance is assessed in the final report of the Commission, the date of drafting of the said report shall be the date of commencement of the application of the sanction.

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