Transcript GENERAL ASPECTS REGARDING THE MISBEHAVIOUR- THE ONLY GROUND OF DISCIPLINARY LIABILITY PhD. Candidate Andra PURAN Assistent PhD.

GENERAL ASPECTS REGARDING THE
MISBEHAVIOUR- THE ONLY GROUND OF
DISCIPLINARY LIABILITY
PhD. Candidate Andra PURAN
Assistent PhD. Candidate Amelia SINGH
The only ground of disciplinary liability is the misbehaviour. If,
while for the two of the other ways of liability- penal and contraventional- the
Labour Code lists the actions that are crimes and contraventions, regarding the
disciplinary liability, the Code doesn’t contain such determinations but only a
definition of the unique ground of this form of liability.
Thus, art. 247 Paragraph 2 states that "disciplinary misbehaviour is
an action in relation to work and consists of a guilty act or omission
committed by the employee by which he violated legal norms, internal rules,
the individual employment contract or the applicable collective employment
contract, orders and legal dispositions of the hierarchical leaders. "
Considering that committing the misbehavior is the mandatory and
sufficient condition for disciplinary liability it must be cumulatively fulfilled
its constituent elements: the object, the objective side, the subject and the
subjective side.
 Object, represented by the social relations of work, order and discipline at
work;
 The objective side: that single or continuous act, meaning employee's
action or inaction contrary to the obligations arising from the sources of
law;
 Subject, which is the employee, always the individual;
 The subjective side, or employee guilty in one of its forms: direct intent,
indirect intent, negligence or recklessly fault.
As noted above, for being in the presence of a disciplinary offense,
the offense committed by an employee must meet its constituent elements. If
these elements are met the employee disciplinary action may be employed.
There are also situations when, although these elements are met, the
facts are not considered misconduct, resulting in that case that the employee
can not be held responsible.
Provided from penal law, the causes which exonerate of
disciplinary responsibility are the following:
• self defence;
• state of necessity;
• physical coercion and moral coercion;
• fortuitous case and major force;
• irresponsibility;
• minority offender;
• error of fact;
• executing the service order which was emitted legally.
According to Art.44 of the Penal Code “it is not an infraction the
action provided by penal law, done in self defence.
It is in self defence the one who does the respective action in order to remove a
material, direct, immediate and unjust attack against him/her, another or
against the common interest.
It is also in self defence the one who because of the disturbance or fear of
overstepping the limits of a proportional defence in report to the gravity and
circumstances in which the attack occurred”.
The causes of penal irresponsibility are found also in the matter of
disciplinary responsibility but only in the measure in which it corresponds to
the juridical reports of the work right, so self defence is very rarely met in the
matter of disciplinary deviation.
The Penal Code provides in Art.45 that “it does not constitute as
infraction the fact provided by penal law, done in a state of necessity.
It is in a state of necessity the one who does the action in order to save from an
immediate danger and who could not be removed otherwise, the life, the body
integrity or health of another person or one of its important possessions or
another one’s possession or a common interest.
It is not in a state of necessity the person who in the moment of committing the
action realised that he/she would suffer grater consequences than the ones
which could occur if the danger were not removed”.
Against self defence, the state of necessity is a cause of disciplinary
responsibility which can be met more often in work relations.
Although the Penal Code refers to the fortuitous case also as a cause
of irresponsibility, the Labour Code refers only, and expressly, in certain
articles(for example Art.4 paragraph 3 letter d; Art.48, Art.50 letter f, Art.105
paragraph 1 letter c, Art.120 paragraph 2, Art.121 paragraph 2, Art.151
paragraph 2, Art.254 paragraph 2) to major force, without giving it a
definition.
Irresponsibility cause provided by the Penal Code in Art.48 is the
mental state of a person who cannot control his/her actions and cannot
conceive his/her actions, because of mental disorders or other situations, like
sleepwalking.
In the case of work relations there cannot be the question of existing
a state of mental disorder when making an individual work contract, because
this is a general incapacity which leads to the impossibility of making such an
act.
But there is the possibility that during the individual work contract
such a state would emerge.
As in the case of irresponsibility, minority is a cause of incapacity to
cloze an individual work contract. Here we refer to minors under the age of 16
(or 15 as provided in Art13 paragraph 2 of the Labour Code).
According to the Penal Code, minors under the age of 14 are not
criminally responsible. Anyway these minors cannot be employed, resulting
that in work reports the minority provided by the Penal Code as a cause of
penal irresponsibility, cannot function.
The Penal Code provides in Art.51 that “it does not constitute as
infraction the action provided by penal law, when the offender, in the moment
of committing the action, does not know the existence of a state, situation or
circumstance of which the penal character of the action depends on”.
These regulations refer to the error in fact, as cause of irresponsibility.
By analogy, we can say that if the employee was not aware of the
existence of a state, situation or circumstance of which the deviation character
of the action depends on, in the moment of committing the action, he/she will
be exonerated of responsibility.
The employee is not forced to appreciate by him/herself,
opportunity of a given order; the responsibility in such a case, operates in
task of the one who, culpably, gave the order, by hypothesis, inopportune.
Those employees who have the work obligation to verify
opportunity of certain expenses or operations answer disciplinary also in
hypothesis in which they execute an order of obvious inopportunity.
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Infirmity, non existent in penal legislation, but provided as exemption
cause in the Government Ordinance no.2/2001 regarding the juridical regime
of contraventions, approved with modifications and additions through Law
no.180/2002, can be withheld, in a disciplinary matter, as irresponsibility cause
from the employee’s part.
Thank you !