Category Archives: Employment

Dismissal Notice by Email

According to HCCJ Decision no. 34/2016 following the examination of an appeal filed by the Iaşi Court of Appeal with a view to pronouncing on a preliminary ruling published in the Official Gazette of Romania, Part I, no. 18 of 9 January 2017 it was held that:-

“E-mail communication by the employer of the individual dismissal decision issued according to art. 76 of the Labour Code represents a way of communication that could not trigger a judicial appeal of the decision according to art. 211 lit. a) of Law no. 62/2011, without the express confirmation by the employee of receiving this correspondence, provided that the employee communicated these contact details to the employer and that there was a common use of this form of communication between the parties, (…).

The decision communicated by electronic mail does not have to comply with the formal requirements imposed by Law no. 455/2001 regarding the electronic document, it is enough to transmit it in an accessible format (PDF document).

Law no. 455/2001 distinguishes between extended electronic signature and simple electronic signature. Simple electronic signature means a collection of data attached to or contained in a document (for example, the e-mail address of the sender attached to the e-mail).

Even though the Court of Appeal’s answers did not give rise to significant judicial practice, it does not mean that until the question was formulated, there were no legal relationships produced by electronic means without the use of extensive electronic signatures.

The refusal to recognize these legal relationships for lack of extensive electronic signature would void the procedural legal provisions on electronic documents, the possibility of telex, fax or e-mail communication, as well as the provisions of art. 8 par. (1) of the Law no. 455/2001, which establishes the obligation of the court to order the verification to be done by specialized technical expertise if one of the parties contests the document or the signature. (…)

The communication, as a separate act of the dismissal decision, is a factual situation that can be proved by any means of evidence, including witnesses and assumptions. Therefore, the communication of an IT document enjoys legal efficiency under Art. 283 of the Code of Civil Procedure, which establishes a presumption of validity in the sense that there are sufficiently serious assurances that registration is carried out by a professional.

In the circumstances in which the legal presumption of validity established by art. 283 of the Civil Procedure Code is not overturned, the document showing the message on the computer is a proof in compliance with the conditions imposed by art. 282 of the Code of Civil Procedure, to be understandable (readable, accessible) and to provide sufficient guarantees to make full proof of its content and the identity of the person who sent it.

Thus, if the employee to whom the dismissal decision was notified had received a document other than the one mentioned in the e-mail, or if the PDF could not be opened, he was under the duty of diligence to report the case within 45 days after communication.

Therefore, in relation to the provisions of art. 76 of the Labour Code, which require the written decision to be issued, and the provisions of art. 77 of the Labour Code, which refers to the communication of the dismissal decision itself and not to the dismissal measure (in the sense that no other document can replace the dismissal decision), it is appreciated that once the employer’s manifestation of will is not materialized in electronic format, but in the classical form (on paper) there is no need for the electronic signature, which must comply with the formal requirements imposed by Law no. 455/2001, the PDF document being only a copy of the document issued in classical form. ”

It is therefore open to employers or their human resources departments especially if they are based in another country to issue decisions electronically. We would advise though that even though this is a Supreme Court Decision that a decision notice be confirmed afterwards in a written signed format.