Is three days sufficient time to prepare a defence in a disciplinary investigation?

Within a disciplinary investigation of an employee, the employer had set a three-day term for hearing the employee, the employee being dismissed afterwards. The Bucharest Court of Appeal ruled that a period of three days to hear an employee under a disciplinary investigation is insufficient for the latter to prepare his evidence and defences to prove the charges were unfounded. The Court found that the employee’s right to a defence had been infringed and ordered that he be reinstated in the position he held prior to his dismissal; the Court also ordered the employer to pay to the employee the indexed, increased and updated salaries and the other rights which he would have benefited from as of the date of dismissal until his actual reinstatement.

Art. 251 of the Labour Code regulates important aspects on disciplinary investigations but makes no reference to the term provided to the employee to prepare evidence and defences in a disciplinary investigation. Thus, this deadline is usually set by the employer. The courts assess whether the time limit is reasonable, taking into account various circumstances such as the volume of documents to be examined or the degree of complexity of the facts imputed to the employee.

In the present case, the employee’s disciplinary investigation took place during the state of emergency and the employer gave the employee three days to prepare his defence. The first court held that as long as the Labour Code does not expressly provide for a time-limit in this respect, the employer is entitled to set the time-limit, regardless of its duration.

The Bucharest Court of Appeal held that the time limit granted to the employee was not a reasonable term for the employee to prepare an elaborate and documented response, especially given the state of emergency decreed at that time in Romania. The Court of Appeal held that the employee’s right of defence had been infringed, vitiating the entire disciplinary investigation procedure. Consequently, the Court of Appeal ordered that the dismissal decision issued by the employer be annulled, the employee be reinstated in the position held prior to the dismissal and that the employer pay compensation consisting of indexed, increased and updated salaries and other rights which the employee would have benefited from starting with the date of dismissal until the actual reinstatement in the position previously held, and that the employer pay the legal costs.

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