The provisions of the Labor Code stipulate the employee’s right to notice in the case of dismissals, which consists of the period of time that the employer must provide to the employees before the actual termination of the employment contract. The notice period cannot be less than 20 working days, being conceived as support for the parties involved, to have sufficient time to prepare for the change in question. However, in individual or collective employment contracts, longer notice periods can also be included.
Due to the fact that the courts have not had a unified vision over time on how to calculate the notice period, recently, the High Court of Cassation and Justice (HCCJ) has addressed this issue through an appeal in the interest of the law.
The supreme court clarified that the notice period for dismissal begins to run from the day following the communication of the notice and ends on the last day of the period, the provisions of the Civil Code and the Code of Civil Procedure regarding the calculation of periods not being applicable. Therefore, the moment of communication of the notice is what is relevant in relation to the calculation of the period, and not, for example, the moment of completing a possible disciplinary investigation concluded with the solution of dismissal.
In addition, it is important to mention that the failure to respect the notice period in the case of an employee’s dismissal can result in the entire cancellation, through the judiciary, of the dismissal decision.
Moreover, the HCCJ concluded a few years ago that the notice period to which the employee is entitled cannot be compensated with anything else. Thus, besides the mandatory provision of the actual notice period, its duration must be expressly included in the content of the dismissal decision, with the employer having, in court, the burden of proving the actual provision of the notice. Furthermore, the Labor Code explicitly provides that the dismissal decision must obligatorily include the reasons for the dismissal, the notice period, the contestation period, and the competent court.
Last but not least, employees working under a fixed-term individual employment contract cannot be discriminated against in terms of a potential dismissal compared to permanent employees. Consequently, the right to notice is recognized even for contracts concluded for a fixed period, as the law makes no distinction in this regard.
During the notice period, the individual employment contract continues to produce its effects, with the employee being obliged to fulfill their duties, and the employer to pay the corresponding salary.
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Ana Maria Nistor – Attorney at Law
