In a decision on the unconstitutionality of certain provisions of the Ordinance on the liability of the military staff, the Constitutional Court of Romania stressed that the current Labour Code no longer allows damage charging decisions to be used by employers to withhold salary amounts following damages caused by an employee.
Thus, in the absence of the employee’s agreement to cover the damage, expressed in the context of contractual freedom, the employer can only withhold salary amounts under a court decision.
There is no provision in the Labour Code stipulating that the employer enjoys the benefit of a unilateral charging decision or that such a decision is enforceable. The Code only stipulates that a damage finding and assessment notice must be accompanied by the employee’s agreement to remedy the damage.
However, in practice, the agreement required by the Labour Code following the damage finding and assessment notice is very often by-passed, and employers in fact make use of a damage charging decision which they impose on the employee and then directly withhold wages as if the damage finding and assessment notice were enforceable.
At the same time, employers either presume the agreement of the parties or obtain it by force. There are situations where employers simply inform the employee and withhold wages immediately after the damage has been ascertained.
In this context, the Constitutional Court has ruled that, for damages caused by employees, the employer cannot issue a charging decision and withhold money from the employee’s salary. In the absence of the employee’s agreement, compensation for damages must be determined only by the court.