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Ombudsman: Lack of a written job description in micro-enterprises puts employees at disposal of employer

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The Ombudsman formulated an exception of unconstitutionality regarding OUG (Government Emergency Ordinance) no. 37/2021 for amending and supplementing the Labour Code, on the grounds that it violates the right to the labour social protection measures guaranteed by the Constitution.

"The provisions of point 1 of the sole article of the Government Emergency Ordinance no. 37/2021 amend art. 17 paragraph 4 of Law no. 53/2003 - Labour Code, in the sense that it eliminates the obligation to inform in writing the employees of micro-enterprises regarding the duties of the job, by drawing up the job description, which represents the very object of the individual employment contract (...), the employment relationship is devoid of any predictability, the employees being at the disposal of the employer, who will always be able to impose tasks that exceed the work to which the worker wished to engage. (...) Moreover, the establishment of the attributions of the exclusively verbal position leads to the impossibility for the employees of the micro-enterprises to prove the fulfillment of the attributions," it is shown in the exception of unconstitutionality.

Also, the Ombudsman deems that OUG no. 37/2021 violates the principle of equality of citizens before the law.

"The provisions of point 1 of the sole article of the Government Emergency Ordinance no. 37/2021 create a discriminatory treatment between the employees of a micro-enterprise who are not entitled to be communicated, in writing, the job description and the employees of an employer who does not have the quality of micro-enterprise and to whom the job description is communicated in writing," mentions the Ombudsman.

According to the source, the lack of harmonization of the provisions of OUG no. 37/2021 with EU law leads to the violation of the constitutional provisions of articles 11, 20 and 148 paragraph 2. Also, the Ombudsman believes that OUG no. 37/2021 violates Article 115 paragraph 6 of the Constitution by not respecting the right to social protection of labour and the principle of equal rights.

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