Evaluation Criteria

Law no. 40/2011 amending and supplementing Law no. 53/2003 – the Romanian Labour Code, as published in the first section of the Romanian Official Gazette no. 225 dated March 31, 2011, basically amended Law no. 53/2003 – the Romanian Labour Code.

One of the most important amendments to the Labour Code refers to the „evaluation criteria“.

The individual labour agreement has to include from now on the evaluation criteria of the employee’s professional activity.

The evaluation criteria and the evaluation procedure of the employees‘professional activity have to be inserted in the employer’s internal regulation as well.

Following the amendment of the Labour Code, the employer has not only to insert the evaluation criteria in the individual labour agreements to be concluded, but also to amend the existing individual labour agreements accordingly by addenda thereto. Furthermore is the employer’s internal regulation to be amended accordingly.

The evaluation criteria are to be constructed in connection with the employee’s performance objectives and his / her duties, whereas their importance is reflected in case of possible termination of the individual labour agreements.

When setting the individual evaluation criteria, the employer has to observe the non - discrimination principle and the principle of equal treatment for all employees for equal work or recognized as equal work.

The importance of the evaluation criteria reveals itself in case of termination of an individual labour agreement. The Romanian Labour Code expressly provides the cases, when an employee may be dismissed for reasons pertaining to his / her person. One such reason is the employee’s dismissal in the case the employee is not professionally fit for his / her current position. According to the legal provisions an employee may be dismissed as being professionally unfit for his / her current position only after the preliminary evaluation procedure of his / her professional activity has been followed. The rules regarding the evaluation procedure arise from the bargaining labour agreement, if applicable or from the employer’s internal regulation. During the employee’s evaluation, the evaluation criteria are to be observed for the scope of the employee’s dismissal. Based on these criteria the employer shall determine if the employee is „fit“ for his / her current position.

The duty of having the evaluation criteria inserted in the individual labour agreements and the employees’ evaluation procedure are quite new regulated in the Romanian labour legislation. The practice and the decisions of the Romanian courts of law, which for sure will not take long to arise, will reveal further aspects in respect of the employees’ evaluation criteria and stress again the importance of this topic.

Given the importance of the labour law for each employer and the extremely regulated nature

Contact Person

Dr. Heinrich Nerlich, Osnabrück