In the context of employment relations, harassment represents a form of inappropriate and illegal behavior manifested through repeated and systematic actions or omissions, aimed at or resulting in affecting a person’s dignity and creating a hostile, degrading, humiliating, intimidating, or offensive environment. Disciplinary measures are legal actions taken by the employer to ensure compliance with organizational rules and policies, as well as to maintain order and efficiency in the workplace, as expressly provided in the Labor Code. It is essential to emphasize that reasonable disciplinary measures, when applied correctly and justly, do not constitute a form of harassment.
In this regard, the Methodology on Preventing and Combating Harassment on the Grounds of Sex and Moral Harassment in the Workplace, from the autumn of 2023, details a series of actions that are considered legitimate prerogatives of the employer and do not qualify as harassment against an employee. For example, directly supervising employees, including setting performance expectations and providing feedback on job performance, approving or denying time-off requests, etc. However, in the absence of a definition for the phrase “reasonable disciplinary measures,” in accordance with the provisions of the Labor Code, the principle of proportionality will be applied, as suggested by the gradual application of sanctions. Thus, the disciplinary measure must be proportional to the severity of the disciplinary offense.
The employer holds the disciplinary prerogative, having the right to apply disciplinary sanctions to its employees in accordance with the legislation in force whenever it finds that they have committed a disciplinary offense. To determine the appropriate disciplinary sanction, the employer analyzes the disciplinary offense in relation to the circumstances in which the act was committed, the degree of the employee’s guilt, the consequences of the disciplinary offense, the employee’s general behavior at work, and any previous disciplinary sanctions suffered by the employee.
Additionally, in order to respect the principle of legality, no measure, except for the written warning, can be imposed before conducting a prior disciplinary investigation. The Labor Code establishes the legal framework for conducting this investigation, expressly mentioning how it should proceed, respecting the right of defense of the investigated person, and the mandatory content of the decision.
However, the employee may request the competent courts to replace disproportionate sanctions by filing an appeal against the decision. In this regard, the High Court of Cassation and Justice has also ruled in resolving a legal interest recourse, through Decision No. 11/2013. The Supreme Court emphasized that the employer’s disciplinary prerogative is not absolute or discretionary, and disciplinary sanctions can only be applied in compliance with legal provisions.
The court has the competence to evaluate the severity of the disciplinary offense and to individualize the sanction in accordance with legal criteria, having the possibility to assess the evidence from the disciplinary investigation and to administer additional evidence. If the disciplinary sanction is disproportionate to the severity of the offense, the court may accept the appeal, partially annul the decision, and replace the sanction imposed by the employer with a more appropriate measure, thus restoring the balance between the employee’s conduct and the sanction applied.
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Ana Maria Nistor – Attorney at Law
