Employment issues are always an interesting topic in Romania. As Romania has moved to a market economy there has been a revolution in employer/employee relationships. Depending on the political persuasion of the Government the rules are either relaxed or tightened.
Recently we have been asked to advise on employer liability in relation to the acts of employees. Because of the nature of Romanian Employment law can produce some surprising results of which employers need to be aware.
All employers are aware that they are liable for the acts of their employees committed during the course of their employment, provided that the employee was acting in accordance with the terms of his labour contract and was obeying the instructions of the employer and observing the rules and regulations of his employment. Problems can however arise when the employee goes outside these rules and the instructions of his employer either intentionally or inadvertently. Also an employer maybe be liable even when the employee is not at work.
For example an employer is liable for the acts of his employee when the employee is traveling to work in a motor vehicle. If the use of a motor vehicle is imperative for his employment and he was travelling to work on the employers business then the employer will be liable.
What is the position when an employee damages third parties goods during his employment? The third party may very well look to the employer for compensation and claim on any insurance maintained by the employer. There needs to be a careful examination of all the facts to see if in fact the employee was acting within the terms of his employment and the employer is liable. Even if the employer is not, that will not prevent the third party claiming from the employer and then leaving the employer to make a claim against the employee. The chance of the employee being able to pay any compensation will in most cases is minimal, and this can then place the employer in a difficult position.
Another scenario which we have recently come across is where the employer has allowed the employee to work under the control and direction of a third party, whilst the employee remains an employee of the employer under a labour contract. Here it is more difficult for the employer. He will need to show that the third party controlled and directed the employee and as such the third party accepted liability for the employees acts rather than the employer.
This type of arrangement can apply in relation to temporary staff. In such a case it is essential that an indemnity is given by the company or firm to whom the employee is seconded and covers acts carried out by the employee on the direct instructions or under the control of the third party employer. The employer should ensure that in any secondment/temporary contract the third party will itself indemnify the employer for any acts carried out by the employee on the instructions of the third party. As in all cases the devil is in the detail and any contract concerning the temporary staff or secondment needs to be carefully looked at and reviewed. Many standard clause make the employee responsible for the acts of their employees even when seconded. All contracts need to be reviewed in the light of the operational requirements and standard clauses amended to cover the liabilities of each party.
Employment issues will always be an issue but if properly managed they can be kept to a minimum and all contracts should be drafted to ensure a proper division of responsibility and liability.
