According to the Law 53/2003 – Labor Code, art. 61, dismissal for poor performance is included in the dismissal for reasons related to the person/employee.
What are the causes of poor performance dismissal?
Causes of dismissal due to poor performance may be:
a) failure to meet the evaluation criteria established when concluding of the employment contract;
b) obtaining poor results on two consecutive periodical assessment;
c) weak performance of the department that the employee is leading;
d) missing deadlines / non-completing duties or performing duties at a lower standard than the set for employment;
e) negligence at work.
An employee cannot be dismissed on poor performance in the following cases:
a) Due to employee’s psychological / physical inability.
b) Bringing loss to the employer with intent. This is a disciplinary case and will be subject to disciplinary procedures;
c) Withdrawal of the authorisations, or certifications necessary for exercising one’s profession by law enforcement
d) Employee’s refusal to participate to the training due to objective reasons.
What are the stages of dismissal due to poor performance?
a) Employees’ assessment
According to the Law 53/2003 – Labor Code, art. 63, paragraph (2), dismissal due to poor performance may only be decided after the employee’s assessment, according to the assessment procedure established through Internal Order Regulation.
b) Schedule employee re-evaluation
If the employee has achieved poor results in the assessment process, the employer will set a deadline in which the employee has the opportunity to improve their results. The deadline will be determined by the evaluation committee according to the complexity of the identified noncompliance.
If the employee doesn’t improve his/her results, he/she will be transferred to another position in accordance with his / her professional level..
If the employer does not have vacancies compatible with his/her professional background, the employee will be dismissed due to being unfit professionally.
What other options do we have if the employee does not correspond professionally to the job?
a)Switching to another job / position
According to art. 64 of Law 53/2003 – Labor Code, if the employee’s is found unfit professionally, the employer has the obligation to present him / her other vacancies in the unit, compatible with his / her professional training.
The employee shall have a deadline of 3 working days from the notification of the employer, to express his/her written consent on the newly offered position.
If the employee does not express his/her consent within 3 working days, the employer may dismiss the employee.
b) Notification of the local public employment office
If the employer has no vacancy, he shall request the support of the local public employment office in order to reallocate the employee, according to his/her professional background.
Does the employee have the right to protection in case of dismissal?
The dismissal on poor performance grounds is assimilated to dismissal for reasons not imputable to the employee. By proposing vacancies according to his/her professional background, and by requesting the local public employment office support, the employer offers protection to the employee, hence it comes in with other alternatives so that she/he will not remain unemployed.
Also as protection for the employee, in the case of dismissal for being unfit professionally, the employee shall have the right to a notice period of at least 20 working days.
When is the decision to dismiss due to poor performance / unfit professionally taken?
The employer shall issue the dismissal decision within 30 calendar days from the acknowledgement of the cause of dismissal.
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Gabriela is a HR expert with more than 10 years experience