2019 left the issues related to termination of the employment agreement when the employee does not have the necessary education/professional qualification for the work performed (Art. 328, Para. 1, p. 6 of the Labour Code) or does not meet the changed requirements for execution of the office (Art. 328, Para. 1, p. 11 of the Labour Code) still unclear. The utmost clarity on the conclusion, amendment and termination of each employment agreement is of crucial importance in the relationships between employer and employee. In particular, the legality of a dismissal means, first and foremost, that the employer has applied the correct ground by justifying with it, and that the ground is consistent with the facts. Point 6 and point 11 of Art. 328, Para. 1 of the Labour Code represent two separate grounds for termination, but they appear to be both different and overlapping. The challenge is to judge the existence of each of them and what the correlation between them is.
The ambiguities related to the application of these grounds have led to successive initiation of two interpretative cases, No. 4/2017 and No. 5/2017, respectively, of the General Assembly of the of the Civil Department of the Supreme Court of Cassation (SCC). In the beginning of2018 the Chairman of the Supreme Court of Cassation merged the two cases were merged. Currently, with respect to points 6 and 11 of Art. 328, Para. 1 of the Labour Code the issues to be interpreted by the Supreme Court are:
- “Is the ground under Art. 328, Para. 1, p. 6 of the Labour Code at hand if the employee does not possess the necessary education or professional qualification for the work performed:
A). When, upon signing of the employment agreement, the requirements for education or professional qualification have been introduced by the employer;
B). When, upon the signing of the employment agreement, the requirements for education or professional qualification have been established by law.”
- “The change of which requirements for execution of the office after the signing of the employment agreement are reasons for termination on the grounds of Art. 328, Para. 1, p. 11 of the Labour Code – all requirements or those for change of education and professional qualification are not included?”
Until the end of 2019, no interpretative decision has been issued. The need for such a ruling though is due to the accumulated controversial court practice:
- Regarding the application of Art. 328. Para 1, p. 6 and p. 11 of the Labour Code as grounds for termination of the employment agreement
For part of the court practice, the employer may apply Art. 328, Para. 1, p. 6 of the Labour Code, regardless of whether the discrepancy was initial, as at the signing of the employment agreement, or occurred at some point afterwards. The timing of discrepancy origination is considered irrelevant. It does not matter where the requirements for the work performed were created in: a law, another statutory act, a job description, another act of the employer, and whether that act containing the requirements has subsequently been changed with another act. The requirement for education/professional qualification is a formal fact, and the failure to comply with this requirement entitles the employer to terminate the employment agreement at any time on the ground of Art. 328, Para. 1, p. 6 of the Labour Code.
According to another group of court decisions, Art. 328, Para. 1, p. 6 of the Labour Code is applicable only when the discrepancy between the education (possessed professional qualification) by the employee is a fact only at the time of signing of the employment agreement. If after the signing of the employment agreement there has been a change in the requirements for education/professional qualification, then p. 6 will not be applied but p. 11 of Art. 328, Para. 1. That part of the court practice sees the difference between the two grounds only in the moment of occurrence of the discrepancy between the education and professional qualification existing and the necessary ones. It is assumed that Art. 328, Para. 1, p. 6 of the Labour Code should not be considered applicable only in cases of discrepancy between necessary and possessed education occurred after the signing of the employment agreement.
On the contrary, some decisions of the SCC treat the grounds of art. 328, Para. 1, p. 6 and p. 11 of the Labour Code as both including changes in the requirements for execution of the office, p. 6 being relevant only to the lack of the required education/professional qualification. Point 11, on the other hand, refers to a change in all other requirements for the work performed.
According to some decisions of the SCC the employer may lawfully terminate an employment agreement on the ground of Art. 328, Para. 1, p. 6 of the Labour Code only when there was a non-compliance at the moment of signing of the employment agreement and the necessary education (professional qualification) is a requirement laid down in a piece of legislation. It does not matter for what reason the employer did not consider the requirement of the piece of legislation. However, if the requirement was not contained in a piece of legislation but was introduced by the employer himself, he could not terminate the employment agreement on the ground of a discrepancy between required education (professional qualification) and such possessed by the employee.
- Regarding the correlation between the grounds under Art. 328, Para. 1, p. 6 and p. 11 of the Labour Code
The issue about the relation between the grounds under p. 6 and p.11 of Art. 328, Para. 1 of the Labour Code is a challenge for both parties under the employment relationship. The employer is to face the risk dismissal executed by him to be considered unlawful despite the circumstances at hand and the explicit reference to them. For the employee with an employment agreement terminated on either of these grounds, it remains unclear for the time being whether his rights have been violated and, if so, how he can defend himself.
According to part of the binding court practice, the two grounds for dismissal – under p. 6 and p. 11 of Art. 328, Para. 1 of the Labour Code – include a change in the requirements for execution of an office under an employment relationship. The change under item 6 refers to the requirements for education and vocational qualification, and the change under p. 11 refers to all other requirements, education and professional qualification excluded, which other requirements are necessary for the work performed.
Notwithstanding the above, there is another stated position in the court practice, namely that the difference between the two grounds is the moment when the change occurs: whether the employment agreement was signed under an initial non-compliance or whether it is a subsequent change in the requirements. In the case under p. 6 of Art. 328, Para. 1 of the Labour Code, the employment agreement is signed upon the lack of the necessary education or professional qualification for the work performed. In the hypothesis of p. 11 of Art. 328, Para. 1 of the Labor Code the amendment occurred after the employment agreement had been signed. Both grounds for termination of an employment agreement are considered as including all requirements, which in their substance represent all the requirements for education and professional qualification. The reason for changing the requirements for the execution of the office, if the employee does not meet them (p. 11), is not a special case of the ground where the employee does not possess the necessary education or professional qualification for the work performed (p. 6) . The assumption that p. 11 covers only cases where new requirements have been introduced (other than those for education and qualification) would mean the possibility for termination of an employment agreement signed upon the initial absence of the relevant requirements to be excluded. If it is assumed that p. 6 applies only when the lack of education/qualification occurs after the signing of the employment agreement, then the possibility for termination of the employment agreement signed in the absence of these requirements would be made impossible. An employment agreement signed in the absence of the required education/professional qualification on the part of the employee will only be void if the education/professional qualification requirements are statutory. In all other cases of such absence, whether it was factual at the signing of the employment agreement or occurred afterwards, the employment agreement will be valid and the employer will be able to terminate it on the basis of p. 6 of Art. 328, Para. 1 of the Labour Code.
The opinions in the court practice regarding the application of p. 6 and p. of Art. 328, Para. 1 of the Labour Code are contradictory. It is imperative that the following raised disputable issues are covered by an interpretative decision:
- At what moment should the requirements for execution of the office be met – at the signing of the employment agreement or may have occurred subsequently;
- Where should the requirements for execution of the office have been introduced – in a piece of legislation or an act of the employer;
- How should the provisions of p. 6 and p. 11 of Art. 328, Para. 1 of the Labour Code be differentiated and when each of the two grounds should apply.
The adoption of an interpretative decision by the General Assembly of the of the Civic Department of the SCC is yet to come.
