As a rule, a collective redundancy situation applies where:
(i) the dismissal implies a specified/determinable number of employees (e.g. 10 employees in the case of companies employing between 21 – 99 employees);
(ii) the dismissal takes place within a period of 30 calendar days;
(iii) the dismissal occurs for one or more reasons not related to the individual workers concerned.
For the purpose of calculating the number of redundancies, “𝘵𝘦𝘳𝘮𝘪𝘯𝘢𝘵𝘪𝘰𝘯𝘴 𝘰𝘧 𝘢𝘯 𝘦𝘮𝘱𝘭𝘰𝘺𝘮𝘦𝘯𝘵 𝘤𝘰𝘯𝘵𝘳𝘢𝘤𝘵 𝘸𝘩𝘪𝘤𝘩 𝘰𝘤𝘤𝘶𝘳 𝘰𝘯 𝘵𝘩𝘦 𝘦𝘮𝘱𝘭𝘰𝘺𝘦𝘳’𝘴 𝘪𝘯𝘪𝘵𝘪𝘢𝘵𝘪𝘷𝘦 𝘧𝘰𝘳 𝘰𝘯𝘦 𝘰𝘳 𝘮𝘰𝘳𝘦 𝘳𝘦𝘢𝘴𝘰𝘯𝘴 𝘯𝘰𝘵 𝘳𝘦𝘭𝘢𝘵𝘦𝘥 𝘵𝘰 𝘵𝘩𝘦 𝘪𝘯𝘥𝘪𝘷𝘪𝘥𝘶𝘢𝘭 𝘸𝘰𝘳𝘬𝘦𝘳𝘴 𝘤𝘰𝘯𝘤𝘦𝘳𝘯𝘦𝘥 𝘴𝘩𝘢𝘭𝘭 𝘣𝘦 𝘢𝘴𝘴𝘪𝘮𝘪𝘭𝘢𝘵𝘦𝘥 𝘵𝘰 𝘳𝘦𝘥𝘶𝘯𝘥𝘢𝘯𝘤𝘪𝘦𝘴, 𝘱𝘳𝘰𝘷𝘪𝘥𝘦𝘥 𝘵𝘩𝘢𝘵 𝘵𝘩𝘦𝘳𝘦 𝘢𝘳𝘦 𝘢𝘵 𝘭𝘦𝘢𝘴𝘵 𝘧𝘪𝘷𝘦 𝘳𝘦𝘥𝘶𝘯𝘥𝘢𝘯𝘤𝘪𝘦𝘴.”
𝗗𝗼 𝗲𝗺𝗽𝗹𝗼𝘆𝗺𝗲𝗻𝘁 𝘁𝗲𝗿𝗺𝗶𝗻𝗮𝘁𝗶𝗼𝗻𝘀 𝗯𝘆 𝗺𝘂𝘁𝘂𝗮𝗹 𝗮𝗴𝗿𝗲𝗲𝗺𝗲𝗻𝘁 𝗼𝗿 𝗿𝗲𝘀𝗶𝗴𝗻𝗮𝘁𝗶𝗼𝗻𝘀 𝗰𝗼𝘂𝗻𝘁 𝗳𝗼𝗿 𝘁𝗵𝗲 𝗽𝘂𝗿𝗽𝗼𝘀𝗲 𝗼𝗳 𝗰𝗮𝗹𝗰𝘂𝗹𝗮𝘁𝗶𝗻𝗴 𝘁𝗵𝗲 𝗻𝘂𝗺𝗯𝗲𝗿 𝗼𝗳 𝗱𝗶𝘀𝗺𝗶𝘀𝘀𝗲𝗱 𝘄𝗼𝗿𝗸𝗲𝗿𝘀?
Although counter intuitive, according to the case law, for the calculation of the number of employees actually dismissed one has to also take into account the employment contracts terminated by agreement of the parties and/or resignation if such termination has materialized “𝘢𝘴 𝘢 𝘳𝘦𝘴𝘶𝘭𝘵 𝘰𝘧 𝘵𝘩𝘦 𝘦𝘮𝘱𝘭𝘰𝘺𝘦𝘳’𝘴 𝘱𝘳𝘦𝘴𝘴𝘶𝘳𝘦/𝘪𝘯𝘴𝘪𝘴𝘵𝘦𝘯𝘤𝘦, 𝘸𝘩𝘰 𝘪𝘯𝘷𝘰𝘬𝘦𝘴 𝘩𝘪𝘴 𝘥𝘪𝘧𝘧𝘪𝘤𝘶𝘭𝘵 𝘦𝘤𝘰𝘯𝘰𝘮𝘪𝘤 𝘴𝘪𝘵𝘶𝘢𝘵𝘪𝘰𝘯” (Bucharest Court of Appeal, Decision No 1637/2018).
The Court notes that the notion of “𝘵𝘦𝘳𝘮𝘪𝘯𝘢𝘵𝘪𝘰𝘯 𝘰𝘧 𝘪𝘯𝘥𝘪𝘷𝘪𝘥𝘶𝘢𝘭 𝘦𝘮𝘱𝘭𝘰𝘺𝘮𝘦𝘯𝘵 𝘤𝘰𝘯𝘵𝘳𝘢𝘤𝘵𝘴 𝘢𝘵 𝘵𝘩𝘦 𝘪𝘯𝘪𝘵𝘪𝘢𝘵𝘪𝘷𝘦 𝘰𝘧 𝘵𝘩𝘦 𝘦𝘮𝘱𝘭𝘰𝘺𝘦𝘳” cannot exclude the forms of termination of employment achieved by agreement of the parties or by resignation, where the role of the employer was decisive.
𝗪𝗵𝗮𝘁 𝗱𝗼 𝘄𝗲 𝗿𝗲𝗰𝗼𝗺𝗺𝗲𝗻𝗱 𝘁𝗼 𝗲𝗺𝗽𝗹𝗼𝘆𝗲𝗿𝘀?
Rather than trying to avoid a collective redundancy by encouraging part of the workers concerned to have their employment contract terminated by mutual agreement or by resignation, employers should perform individual dismissals in batches by limiting the number of dismissed workers to the maximum allowed by law within any given 30-day period.
Dismissals effected in batches should be further based on separate resolutions adopted by the employer. Dismissals effected in batches but based on one single resolution, shall be deemed as a collective redundancy even if the dismissals occured over several months.
This article was first published by our Romanian member firm Suciu – Employment and Data Protection Lawyers on 24 April 2023. For more information on this topic or to discuss your specific case, please contact our representative Andreea Suciu, Managing Partner of the firm.