Employment Law in Romania
January 15, 2009 By Hammond, Bogaru & Associates
For foreign employers sometimes it is important to consider when is an employee at work and when is he not. Whilst this may seem a strange question recent decisions and practice in Romania have raised the enquiry as to what is the correct answer. The question is important also for foreign employers who send their employees to work on projects to Romania. This note is intended to draw the reader’s attention to the provisions of Romanian law, recent decisions and possible consequences.
Now the normal practice in many countries is that it is possible to hold the employer vicariously liable for the acts of the employee carried out during the course of his actual employment. This liability is for both civil acts and criminal acts, if carried out during the course of employment and under the direction and control of the employer. Course of employment in this context means the normal working hours when the employee is working, and the employer has direct control as to how the employee carries out such work.
In Romania, there are a number of scenarios of which foreign employers need to be aware, especially relating to driving and motor accidents in Romania. Romania is statistically defined as a dangerous place to drive a motor vehicle, and therefore it is inherently dangerous for a foreigner to assume that the same rules apply in Romania as apply in their own jurisdictions. These observations apply not only to employees seconded to work in Romania but also employees working for subsidiaries of foreign companies.
One anomaly is that in certain circumstances the employer will be liable for the acts of the employee from the moment the employee leaves his residence to travel to the place of employment (Law 319/2006). This rule applies even if the employee is travelling to the usual place of work i.e. the employer’s office from the employee’s residence. This rule has been comment upon by in a decision by the Constitutional Court case 1042/2007 where the Court held that on the facts in this case the employer was liable for the acts of the employee when travelling from home to the employer’s office. The general rule in Romania is still that the employer is liable, unless the employer can show why it is not liable.
Another area of risk is when a foreign company has a contract with a Romanian company to supply engineers and does so. The employer sends an employee to Romania to act as an engineer. Is the employer liable for all the acts of the employee whilst the employee is working in Romania? It seems clear that whilst the employee is travelling to Romania the employer is liable to and for the employee, as well as when the employee is travelling to the place of employment. However, what about acts of the employee at the week end or during his rest periods?
Consider, another example could be that whilst working in Romania the engineer is asked by an employee of the Romanian company to which he is seconded to drive a vehicle. An accident happens. Is the foreign employer liable for the act of the employee? The employee was hired as an engineer and not as a driver, therefore when he was driving he was carryout a function for which he was not hired. In these circumstances it is possible to argue that the foreign employer is not liable as the employee was not at that time under the control and supervision of the employer and was not acting in the course of his employment.
All this puts the employer whether a foreign or Romanian company at risk. There is no doubt that there is still a feeling in Romania, which is in someway supported by the courts, that wherever possible bring in the employer even a foreign employer as a defendant as they have more resources to pay out on an claim. Whilst claims in Romania have not yet reached the level of some western countries there is no doubt that in due course claims and awards will increase.
So what steps can an employer take to protect themselves?
Firstly they should make it clear to any employee travelling to Romania that they should carry out acts directly in connection with their employment. Secondly, ensure that foreign employees, if involved in driving as part of their employment have adequate local insurance. They should also explain to foreign employees the risk that they the employee face if they are involved in an accident. Thirdly, try to arrange so far as possible that proper motor travel is arranged for the employee so that the employer is not at a direct risk. This can be by supplying a car with driver or arranging that trips are undertaken if practical by taxi. Fourthly, always consider whether the employee should be employed by a local company and therefore keeping the risk off-shore. Fifthly, so far as possible to arrange insurance with a company to cover their risk if economically viable.
The above will not take away the whole risk but will go some way to minimising any potential risk to the foreign employer.
January 2009
ABOUT THE AUTHOR: Liviu Unguru/Nicholas Hammond
Liviu Unguru is a senior Romanian lawyer with Hammond, Bogaru and Associates expert in litigation and employment mattes including insurance claims.
Nicholas Hammond is an international lawyer based in Bucharest with over 18 years of experience in Romania and dealing with Romanaion associated matters.
Copyright Hammond, Bogaru & Associates
More information about Hammond, Bogaru & Associates
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
In Romania, there are a number of scenarios of which foreign employers need to be aware, especially relating to driving and motor accidents in Romania. Romania is statistically defined as a dangerous place to drive a motor vehicle, and therefore it is inherently dangerous for a foreigner to assume that the same rules apply in Romania as apply in their own jurisdictions. These observations apply not only to employees seconded to work in Romania but also employees working for subsidiaries of foreign companies.
One anomaly is that in certain circumstances the employer will be liable for the acts of the employee from the moment the employee leaves his residence to travel to the place of employment (Law 319/2006). This rule applies even if the employee is travelling to the usual place of work i.e. the employer’s office from the employee’s residence. This rule has been comment upon by in a decision by the Constitutional Court case 1042/2007 where the Court held that on the facts in this case the employer was liable for the acts of the employee when travelling from home to the employer’s office. The general rule in Romania is still that the employer is liable, unless the employer can show why it is not liable.
Another area of risk is when a foreign company has a contract with a Romanian company to supply engineers and does so. The employer sends an employee to Romania to act as an engineer. Is the employer liable for all the acts of the employee whilst the employee is working in Romania? It seems clear that whilst the employee is travelling to Romania the employer is liable to and for the employee, as well as when the employee is travelling to the place of employment. However, what about acts of the employee at the week end or during his rest periods?
Consider, another example could be that whilst working in Romania the engineer is asked by an employee of the Romanian company to which he is seconded to drive a vehicle. An accident happens. Is the foreign employer liable for the act of the employee? The employee was hired as an engineer and not as a driver, therefore when he was driving he was carryout a function for which he was not hired. In these circumstances it is possible to argue that the foreign employer is not liable as the employee was not at that time under the control and supervision of the employer and was not acting in the course of his employment.
All this puts the employer whether a foreign or Romanian company at risk. There is no doubt that there is still a feeling in Romania, which is in someway supported by the courts, that wherever possible bring in the employer even a foreign employer as a defendant as they have more resources to pay out on an claim. Whilst claims in Romania have not yet reached the level of some western countries there is no doubt that in due course claims and awards will increase.
So what steps can an employer take to protect themselves?
Firstly they should make it clear to any employee travelling to Romania that they should carry out acts directly in connection with their employment. Secondly, ensure that foreign employees, if involved in driving as part of their employment have adequate local insurance. They should also explain to foreign employees the risk that they the employee face if they are involved in an accident. Thirdly, try to arrange so far as possible that proper motor travel is arranged for the employee so that the employer is not at a direct risk. This can be by supplying a car with driver or arranging that trips are undertaken if practical by taxi. Fourthly, always consider whether the employee should be employed by a local company and therefore keeping the risk off-shore. Fifthly, so far as possible to arrange insurance with a company to cover their risk if economically viable.
The above will not take away the whole risk but will go some way to minimising any potential risk to the foreign employer.
January 2009
ABOUT THE AUTHOR: Liviu Unguru/Nicholas Hammond
Liviu Unguru is a senior Romanian lawyer with Hammond, Bogaru and Associates expert in litigation and employment mattes including insurance claims.
Nicholas Hammond is an international lawyer based in Bucharest with over 18 years of experience in Romania and dealing with Romanaion associated matters.
Copyright Hammond, Bogaru & Associates
More information about Hammond, Bogaru & Associates
View all articles published by Hammond, Bogaru & Associates
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
