Guide to the disciplinary investigation: the 6 mandatory steps, the 30-day and 6-month deadlines, what the summons and the decision must contain, the sanctions and templates.
Translated from Romanian. This article covers Romanian labour and tax law; the Romanian version is canonical and is updated first.
The prior disciplinary investigation (cercetarea disciplinară prealabilă) is the step employers skip most often — and the number one reason why sanctions are struck down in court. The rule has no exceptions: without a prior investigation, the sanction is null by operation of law, however serious the act. Here is the full procedure, with deadlines and templates.
The Labour Code (Codul Muncii, art. 247) defines disciplinary misconduct as an act connected with work, committed with fault, consisting of an action or omission by which the employee breaches statutory rules, the internal rules of procedure, the individual or collective employment contract, or the lawful instructions of hierarchical superiors.
Three elements must be present at the same time: the connection with work, fault, and the breach of a rule the employee was aware of. Hence the importance of the internal rules of procedure and of the job description: if the obligation was not assumed and brought to the employee’s attention, it cannot be breached.
This is where most cases are lost:
Both must be observed cumulatively. A decision issued on day 31 is null, even if the act is impeccably proven.
Other deadlines:
1. The written complaint. The act is recorded in a report of complaint, registered with the company. The date of registration is the date from which the 30-day deadline runs — which is why registration is not a formality.
2. Appointing the committee. A written decision of the employer appoints the person or committee carrying out the investigation.
3. The written summons of the employee. It must contain the subject (the act under investigation) and the date, time and place of the meeting. It is served against signature of receipt or by registered letter with acknowledgement of receipt.
4. The meeting. The employee has the right to be assisted by a lawyer or a trade union representative, to put forward a defence and to propose evidence. Everything is recorded in minutes.
If the employee fails to attend without an objective reason, the employer may apply the sanction without an investigation — but the non-attendance must be recorded and the summons proven.
5. The proposed sanction. The committee proposes; it does not order. The distinction matters legally.
6. The sanction decision. Issued by the employer, in writing.
On pain of nullity, the decision includes:
Omitting any of these elements is a frequent ground for annulment, regardless of the merits of the case.
The Labour Code allows, in order of severity:
The employer chooses the sanction taking into account: the circumstances of the act, the degree of fault, the consequences, the employee’s general conduct and any previous sanctions. Applying the most severe sanction for a first minor breach is hard to sustain.
Only one sanction may be applied for the same act of misconduct.
REPORT OF COMPLAINT
No. ______ / date __________
To: The management of [Employer name]
The undersigned [Surname First name], holding the position of [position],
report the following act committed by Mr/Ms
[Surname First name], holding the position of [position]:
Description of the act: _______________________________
Date and time of commission: _________________________
Place: _______________________________________________
Provisions considered to have been breached:
[art. of the internal rules / job description / employment contract]
Persons who became aware / witnesses: _________________
Documents attached: __________________________________
Signature: ____________ Date: __________SUMMONS
No. ______ / date __________
To: Mr/Ms [Surname First name], [position]
Pursuant to art. 251 of Legea nr. 53/2003 – Codul muncii
(the Labour Code), we summon you for the prior disciplinary
investigation concerning the act of __________, consisting of:
_____________________________________________________
Date of the meeting: __________
Time: __________
Place: _______________________________________________
We inform you that you have the right to put forward a
defence, to propose evidence and to be assisted by a
lawyer or by a representative of the trade union.
Failure to attend without an objective reason entitles the
employer to apply the sanction without carrying out the
investigation.
Legal representative: ____________ Date: __________
Received one copy: __________ Date: __________What happens if I do not carry out the prior investigation? The sanction is null by operation of law, regardless of the seriousness of the act. The only exception is the written warning.
How long do I have to issue the decision? Within 30 calendar days of becoming aware of the misconduct, but no later than 6 months from the date the act was committed. Both deadlines must be observed.
What do I do if the employee refuses to attend? You may apply the sanction without an investigation, provided you can prove the summons and you record the non-attendance. The refusal must be without an objective reason.
Can two sanctions be applied for the same act? No. Only one disciplinary sanction is applied for the same act of misconduct.
When is the sanction removed? By operation of law, 12 months after it was applied, if no new sanction is applied to the employee within that period.
See also the internal rules of procedure, the job description and dismissal and termination of the contract.
In a disciplinary procedure, the evidence counts for more than the act — and the evidence has to exist before the conflict. Workly keeps in the employee’s digital file the job description, the proof of acknowledgement of the internal rules of procedure (with timestamp and confirmation) and the appraisal history. Without those documents, “they breached an obligation” is hard to sustain before a court.
The documents of the procedure — the report of complaint, the summons, the minutes, the decision — are kept in the same file, numbered and dated, so that the 30-day and 6-month deadlines can be proven. And the sanctions applied stay in the history, with the removal date after 12 months calculated automatically.
Informational article, accurate at the date of publication. Not legal advice. The disciplinary procedure is strictly formalised and defects of form lead to nullity — consult a specialist before applying a sanction, especially termination of the contract.
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