August 2018 – An organisation should be able to make clear what is permitted as strong management and what is considered as misuse of power and harassment, just as it should be able to explain when employees in subordinate positions can express their thoughts and when such behaviour crosses the line and becomes insubordination and harassment of their superiors.
This Kinstellar White Paper has been prepared by our experts to give insight into the treatment of harassment and insubordination at the workplace in Romania.
What is the legal framework?
The main laws governing harassment and insubordination at the workplace in Romania are Law No. 53/2003 on the Labour Code and OUG 137/2000 on the prevention and retaliation of all forms of discrimination and Law No. 202/2002 on equal opportunities and treatment between men and women.
We list below the main provisions applicable in cases of moral harassment and insubordination:
There are also other applicable local and international laws and regulations that may become relevant when it comes to the “grey” zones of harassment and insubordination (see the appendix for a list of the relevant laws).
What is harassment by mobbing and bullying?
Harassment at the workplace usually comprises the following main features:
In cases when an individual, usually a supervisor, is guilty of the above offences, we are dealing with a case of bullying. When the harassment comes from an organized group of employees, we are dealing with a case of mobbing. The distinction between various forms of harassment (mobbing, bullying etc.) can have value from an HR perspective but makes little difference from the legal perspective, as all are considered as means of harassment and are penalised in the same way.
There is no legal definition of what can be considered harassment by bullying and mobbing, but there is a common understanding of this concept when it comes to extreme and obviously wrong behaviour, such as:
Nonetheless, strong managers may sometimes be unaware of what constitutes harassment. Managers who believe that the following actions are an acceptable feature of strong leadership should know such behaviour could be considered as harassment:
Harassment by way of example:
Allowed: Constructive criticism communicated in a professional manner during regular professional assessment sessions for the purpose of improving achievements of that specific employee, further strengthened by offering training and professional support, or alternatively, a distinct working environment that would better suit the employee’s capabilities.
Prohibited: Repeated criticism outside regular assessment sessions without the offer of support and help for improvement.
What can employees do in case of mobbing and bullying?
An employee who considers himself/herself a target of harassment could take one or all of the following tracks:
What is insubordination as a form of harassment?
There is no statutory provision on what precisely constitutes insubordination. Therefore, the employer must consider framing a workplace policy that includes details of what is considered insubordination and what is the related penalty.
It is generally accepted that when an employee refuses to obey a direct lawful and reasonable instruction given by his/her manager, we are dealing with a case of insubordination that leads to the harassment of that employee’s supervisor. Apart from an outright refusal to conduct a task, examples of insubordination may include:
There is a thin line between insubordination and poor professional performance, which usually consists in the individual’s intention to disobey rather than in his/her incapacity to follow instructions through. Therefore, the decision on whether or not you are dealing with insubordination can only be made on a case-by-case basis.
Insubordination by way of an example:
Allowed: Employees may question the lawfulness of an instruction coming from a manager.
Prohibited: Employees may not question the managerial or operation decision of their manager.
What can employers do about harassment and insubordination?
In Romania, moral harassment by bullying or mobbing triggers the employer’s civil or criminal liability, depending on the gravity of the specific case. Thus, an employer’s permissive attitude towards harassment not only causes poor performance, loss of productivity and damage to the company’s name, but it may also trigger the employer’s legal liability resulting in fines and compensations to the injured employee.
Harassment by insubordination is not clearly regulated under the current legal framework, but an employer can implement a specific policy on harassment in its internal regulation that will have the same force as a legal rule at the level of that specific organisation.
Employers should protect themselves against various forms of harassment by taking one of the following actions:
What is the legal tendency?
In Romania, there have been many cases where an employee requested moral damages based on harassment. However, except for clear-cut cases of harassment such as those involving discrimination based on gender or sexual orientation, few were awarded compensation. This trend is now changing. Decisions have been recently handed down where employees were granted damages for enduring harassment at the workplace (e.g. case 67/3/2016, Judgement 6858/2016 of Bucharest Tribunal).
Parliament recently opened debate on a draft law that addresses moral harassment at the workplace. Under the current wording of the draft law, any behaviour at the workplace, either of a supervisor or of a subordinate, that harms labour conditions by infringing against the rights or dignity of an employee, by affecting his/her physical or psychological condition, or by compromising his/her professional future and consisting of hostile or unwilling behaviour, verbal comments, actions or gestures is considered harassment. More importantly stress, and physical exhaustion (burnout) falls under the sphere of harassment.
All employees that are found guilty of harassment at the workplace must assume liability under a disciplinary procedure and pay fines and compensations to the injured party. At the same time, employers are held liable to pay fines for harassment that can vary between EUR 2,500 to EUR 3,500. Harassment that leads to physical/psychological harm or damage to the professional future of an employee may be considered a crime and be penalised with six months to one year of imprisonment or with a penal fine.
To date, there are not that many specific court cases involving insubordination, mainly because employers prefer to deal with insubordination by amiable separation than by a disciplinary decision that could be reversed in a court of law. There are also employers that decide to deal with insubordination by retaliation against the employee. This is always a poor choice, as it gives the employee the opportunity to file a court complaint on the grounds of harassment. Courts in Romania frequently award compensation for harassment, even when this was caused by the employee’s failure to be subordinate, as courts tend to view harassment by isolation or victimisation as an improper response to insubordination.
To settle or not to settle
Always settle in a smart way!
The decision to look away when confronted with cases of insubordination or harassment may foster a disorganised work environment, just as harsh reprisals may raise the risk of attrition. An amiable settlement may also not be in all instances a good solution, as it may give employees incentive to seek opportunities to receive compensation on their departure.
Employers have the obligation to ensure a safe work environment, and for that an employer should allow an employee who has proven to be an adequate employee during a probation period, to change the team within which he/she is not feeling comfortable, in order to give the employee the opportunity to continue the work he/she has done so far, as well as to verify where precisely is the source of tensions in that specific team.
The solution is always to move the employee to a distinct job position in line with his/her competences, or, where applicable, to fire him/her for poor professional performance. An amiable separation should be considered as an option only when all the other possibilities have been exhausted or when the employer is sure that in that specific case there is no other solution. At all times, isolating an insubordinate employee by pushing him/her away from projects, or by not assigning him/her with new duties, is never an option as it can lead to humiliation and harassment, which is neither an ethical nor legal approach.
Appendix: main legal texts on moral harassment
(*excerpts from various applicable laws and agreements with provisions concerning harassment at the workplace in Romania)
1 Treaty establishing the European Economic Community, Mar. 25, 1957, 298 U.N.T.S. 11. Available at http://www.hri.org/docs/Rome57/Part3Title08.html. Art. 118a para. (1) states that "Member States will pay particular attention to encourage improvements, particularly in the work environment, in terms of workers' health and safety, and will aim to harmonize conditions in this area, while maintaining improvements made ".
2 CJEU Decision of 12 November 1996, Case C-84/94, Kingdom of Great Britain and Northern Ireland v Council of the European Union, available at http://curia.europa.eu/juris/liste.jsf . Paragraph 18 reads as follows: "There is no element in the wording of Article 118a to indicate that the "working environment", "security" or "health" used in those provisions should, in the absence of other indications, be interpreted restrictively, and not as embracing all factors of a physical or other nature that affect the health and safety of the worker in his working environment [...] ".
3 Charter of Fundamental Rights of the European Union, published in the Official Journal of the European Union C / 83/391 dated 30/03/2010. Available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:0389:0403:ro:PDF.
4 Report of the European Parliament's Committee on Labour and Social Affairs of 16 July 2001, available at http://www.europarl.europa.eu/portal/en.
5 European Parliament’s Resolution 2001/2339 (INI) on moral harassment at workplace, published in the Official Journal of the European Union C / 77E of 28/03/2002. Available at https://publications.europa.eu/en/publication-detail/-/publication/d8f9cea5-f1f1-45c9-8941-f9e39b912d10.
6 The Framework Agreement on Workplace Stress of 08/10/2004, signed by the European Trade Union Confederation, the Union of European Employers' Federations and Industries, the European Association of Craft, Small and Medium-sIzed Enterprises and the European Centre for Enterprises with Public Participation. Available at https://www.etuc.org/sites/www.etuc.org/files/Romanian_TU_version_1.pdf.
7 Report of the European Social Partners on the implementation of the Framework Agreement on Workplace Stress adopted by the Social Dialogue Committee on 18 June 2008. Available at https://osha.europa.eu/en/legislation/guidelines/implementation-of-the-european-autonomous-framework-agreement-on-work-related-stress.
8 Framework Agreement on Harassment and Violence at Work, adopted on April 26, 2007. Available at https://www.etuc.org/framework-agreement-harassment-and-violence-work.
9 European Agency for Safety and Health at Work, Violence and Harassment at Work: Situation at European Level, Publications Office of the European Union, 2010. Available at http://www.maybo-by-mandt.com/file/25/violence-harassment-eu--report.pdf.
10 The European Agency for Safety and Health at Work, European survey of new and emerging risk businesses, available at https://osha.europa.eu/en/publications/reports/ro_esener1-summary.pdf.
11 European Parliament resolution of 15 December 2011 on the Mid-term review of the European Strategy 2007-2012 on health and safety at work 2011/2147 (INI), published in the Official Journal of the European Union CE 168/102 of 14/06/2013. Available at http://eur-lex.europa.eu/legal-content/RO/TXT/HTML/?uri=CELEX:52011IP0589&qid=1485504596995&from=EN.
12 European Commission, Interpretative document on the implementation of Council Framework Directive 89/391 / EEC on mental health at work, issued in November 2014. Available at https://osha.europa.eu/en/legislation/guidelines/interpretative-document-implementation-council-directive-89391eec-relationship.
13 European Parliament resolution of 25 November 2015 on the EU Strategic Framework on Health and Safety at Work 2014-2020, 2015/2017 (INI). Available at http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P8-TA-2015-0411+0+DOC+XML+V0//EN.
14 Press release of the European Commission dated 10 January 2017. Available at http://europa.eu/rapid/press-release_IP-17-2_en.htm. In this press release, the Commissioner for Employment, Social Affairs, Competencies and Labour Mobility, Marianne Thyssen, said: "Today we are presenting a clear action plan to create a solid security and health framework at workplace, adapted to the 21st century, with transparent, up-to-date, and effectively applied field standards. We also respect our commitment to tackling cancer caused by working conditions by addressing exposure to seven additional cancer chemicals, which will improve the protection of about 4 million workers in Europe. We join forces with Member States and stakeholders to create a healthy and safe work environment for all.”
15 The document "Health and Safety at Work is Everyone's Responsibility - A Practical Guide for Employers" (the original name: "Practical guidance for employers") published by the European Commission on 10 January 2017.
16 European Parliament resolution 2016/2095 (INI) of 19 January 2017 on the European pillar of social rights, published in the Official Journal of the European Union C / 77E of 28/03/2002.
17 Press release of the European Commission of 23 January 2017. Available at http://europa.eu/rapid/press-release_IP-17-114_en.htm. At the conference, European Commission President Jean-Claude Juncker said: "Since the beginning of my term, I have made clear that I want a more social Europe. Together, we have taken important steps in this direction. This year will be a crucial year. After extensive public consultation, it is time to create the European pillar of social rights. The social summit in Sweden will help us create the necessary momentum and put social priorities where it is their place: among the absolute priorities of the European agenda". At the same time, the "Social Summit for Jobs and Equal Growth" was also announced in Sweden in November 2017 to discuss and analyse the priorities and policy initiatives set at the European level as well as the ways in which these could support the European Union, the Member States and social partners at all levels to achieve the expected results in terms of their common economic and social priorities.
18 Press release of the National Institute of Statistics No. 293 of 5 December 2013. Available at http://www.insse.ro/cms/files/statistici/comunicate/com_trim/sanatate/CIC_trIIr03.pdf.
19 National Council for Combating Discrimination, Perceptions and attitudes of the Romanian population towards the National Strategy for Prevention and Combating Discrimination, 2015, p. 15. Available at http://api.components.ro/uploads/1d3a0bf8b95391b825aa56853282d5da/2016/10/Sondaj_TNS_CNCD_2015.pdf.
20 The provisions of Law No. 229/2015 show that "although it has made significant progress in the field, mainly due to anti-discrimination legislation and gender mainstreaming in national regulations, these being harmonized with community legislation, there are many inequalities and discrimination cases in Romania." For example "discrimination against women through harassment, including through moral harassment".
21 Court of Appeal Cluj, Civil Division I, Civil Decision No. 4279 / A / 2012. Available at www.jurio.ro. "[…], the Court's ruling is correct because the differential treatment of the applicant in relation to other employees may be regarded as an abuse of rights by the employer, which is sanctioned precisely by paying the compensation which was achieved in the case ".
For more information please contact Diana Condurache, Managing Associate, at , or at +40 21 307 1688.