Remedies against General and Special Disciplinary Sanctions

By Lesni, Claudiu Iulian | Contemporary Readings in Law and Social Justice, July 1, 2017 | Go to article overview

Remedies against General and Special Disciplinary Sanctions


Lesni, Claudiu Iulian, Contemporary Readings in Law and Social Justice


1.Introduction

The labor discipline is an objective condition, necessary and indispensable to every employer, in running his/her activity. The need to comply with a certain order, a few rules to coordinate the conduct of individuals, to achieve the common goal, is imposed with an obviously valid force to any human activity carried out collectively.

By virtue of the subordination relationship, the employee must meet not only general work obligations stipulated in the regulations, in the individual labor contract, in the internal regulations, but also the measures (provisions) taken by the employer, by decisions, written or verbal orders in exercising his duties of coordination, guidance and control.

Highlighting the importance of the duty to comply with the labor discipline, the Labor Code states it in art. 30 par. 2 letter b, as a distinct obligation of the employees (Drumea, 2012). This obligation represents the right of the employer - provided in art. 263 paragraph 1 of the same code - to apply disciplinary sanctions to the employees whenever he finds out that they commit disciplinary offenses. As the name shows it, considering its essence and purpose, the labor discipline concerns only the social labor relations.

Therefore, it can be defined as the necessary order in the execution of legal work relationships and within a team of employees, which requires compliance by them with rules or standards of conduct, guarantee for efficiently running the work process.

Another legal point of view is that the labor discipline can be characterized primarily as one of the general principles of regulation of labor relations: complying with the labor discipline is a basic duty of each employee.

Under this principle, the labor discipline represents objectively, a system of rules governing the behavior of employees in the development of the collective labor process.

From a subjective point of view - of the employee - the labor discipline constitutes a synthetic legal obligation that informs, and summarizes all the obligations undertaken by signing the individual labor contract.

This obligation is general, it does not have any explanation, and it belongs to each employee. At the same time, this obligation is contractual, because although generically provided by law, it arises in particular, in the task of a person determined by his/her appointment in the work staff of a unit, following the conclusion of the labor contract.

It should be emphasized that the labor discipline is autonomous, unlike the other categories of discipline - financial, its close connection to other forms of discipline in the broad sense of nature.

2.The Appeal - Remedy against Disciplinary Sanctions

Art. 252 par. 5 of the Labor Code amended and republished in the Official Gazette no. 345 of May 18, 2011 provides that "the sanctioning decision can be appealed by the employee, to the competent courts within 30 calendar days from the communication date." (Drumea, 2015: 92)

This period shall start only after having communicated the decision in writing (Drumea, 2015: 84), in the forms provided by art. 252 par. 4 of the Labor Code (personally delivered to the employee with signature of receipt or, in case of refusal to receive it, through a recommended letter); it has no relevance if the employee became aware of the decision otherwise).

Any disciplinary action starting with a written warning and ending by the termination of the individual employment contract for disciplinary reasons (disciplinary dismissal) can be appealed only in courts. Disciplinary measures can be ordered (Drumea, 2015: 85) only under conditions stipulated by the Labor Code.

It is a provision consistent with the provisions of art. 269 of the Labor Code republished, and with those of art. 210 of the Social Dialogue Law , pursuant to which judging individual labor conflicts is a duty of the courts in the jurisdiction of which, the applicant (i. …

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