Signing And Communication Of Paperwork In The Area Of Labour Relations – Employment and HR
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One of the specific aspects of M&A transactions that a buyer should consider when conducting due diligence on the target relates to labor relations. Specific investigations into labor law matters should be carried out for both share deals and asset deals.
In Romania, the trend since 2020 has been to amend the law on making industrial relations more flexible in the context of the pandemic. In addition to the already existing teleworking regime, the recently implemented work from home on a large scale forced the Romanian legislature to take additional legal measures to digitize employment relationships, including through the State Emergency Ordinance No. 36/2021 (“GEO 36/2021”) the ability to sign documents in the field of industrial relations with an electronic signature.
Historically, this possibility existed in Romanian legislation before 2021, taking into account the provisions of Law 455/2001 on electronic signature and Regulation (EU) No. 910/2014 on electronic identification and trust services for electronic transactions in the internal market and repealing the directive 1999/93 / EC. According to Law 455/2001, the document in electronic form with an extended electronic signature on the basis of a qualified certificate is equated with the document with a private signature (handwritten signature). A valid qualified electronic signature (QES) within the meaning of regulation 910/2014 fulfills the above-mentioned requirements. Therefore, before GEO 36/2021, both employers and employees had the option of signing the documents in the area of industrial relations with a QES. Nevertheless, this method has been rarely used in practice by Romanian employers for a number of reasons, including the presence of workers mainly in the office, the cost and formalities of obtaining the electronic signature, or the reluctance of some labor authorities on the matter.
The Labor Code, as amended by GEO 36/2021, provides that an advanced or qualified electronic signature together with an electronic time stamp or a qualified electronic time stamp and the qualified electronic seal for the creation of all documents in the field of employment relationships that were issued upon conclusion of the Individual employment contract, arising during its execution or upon termination of the contract, under the conditions stipulated by the company regulations and / or the collective employment contract in accordance with the law. The employer cannot oblige the applicant or the employee to use the electronic signature and the parties must use the same type of signature on a document, be it handwritten or electronic.
GEO 36/2021 does not contain any reference to the transmission of the documents signed with electronic signature, therefore employers who want to use this type of signature in their work must confirm these new provisions with the existing ones on the transmission of documents.
It is important to emphasize that most of the documents in the field of industrial relations are part of the worker’s file, which must contain mainly original documents, and some of these documents should be sent to the workers in the original. The documents signed with an electronic signature must be sent to the employees electronically so that they are deemed to have been sent in the original, whereby the paper copy of a document signed with an electronic signature is not an original.
Finally, we should emphasize that the Labor Code contains specific communication rules regarding disciplinary sanction decisions, as described below, which employers should respect.
An important question is whether, in practice, all industrial relations documents should be signed with an electronic signature, even if the employer is willing to implement this type of signature in his organization. In order to answer this, the following aspects should be considered:
As for the disciplinary decisions, in accordance with Article 252 (4) of the Labor Code, they must be delivered to the employee in person with a signature on receipt or, in the case of refusal of acceptance, by registered letter to his / her domicile / domicile. In addition to the above-mentioned means of communication, the decision can also be sent in paper form by a bailiff (“executor judecatoresc” in Romanian). The communication channels mentioned above apply exclusively to disciplinary decisions and, unfortunately, in this case there is no explicit legal reference to the possibility of electronic communication. Under these conditions, from a legal point of view, the safest way is to handwrite the disciplinary decisions and send them to the employees in the original printout using one of the methods mentioned above.
Additional rules for notifying the individual dismissal decision have been introduced by the Romanian Supreme Court of Cassation and Justice (“HCCJ”). The HCCJ decided in resolution no. 34/2016 that the individual termination decision can be communicated by e-mail, provided that the employee has provided the employer with this contact information and that the parties have agreed to use this form of communication. The decision, transmitted in this way by email in PDF format, only has to meet the formal requirements of the Labor Code (ie the written form) and not the legal requirements for documents signed with an electronic signature.
This means that the individual termination decision can also be signed by hand and sent in PDF format to the employee’s personal e-mail address, provided this has been used between the parties beforehand. Notifying this type of decision in PDF format made industrial relations more flexible and is widely used by employers in practice. It is important to emphasize that Decision No. 34/2016 relates only to the individual decision to terminate and should not be extended to other types of documents in the field of industrial relations.
In order to be on the safe side in view of decision no. 34/2016, the employee’s personal e-mail address should also be used for the transmission of the individual termination decision signed with an electronic signature.
The possibility of notifying the individual termination decision by e-mail does not exclude other means of communication, such as personal delivery to the employee, registered letter or bailiff.
Apart from the special situations mentioned above, in the absence of other statutory provisions, it can be assumed that both the worker’s business and personal email address can be used for the transmission of documents in the field of industrial relations that have been signed with an electronic signature . The company regulations and / or the collective employment contract should, however, provide specific regulations in this regard.
The content of this article is intended to provide general guidance on the subject. You should seek expert advice regarding your specific circumstances.