Delegation is frequent, especially in the case of employees who deal with the supply or sale of products, the identification of beneficiaries or customers, etc.
As a legal nature, the delegation represents a unilateral modification of the individual labor agreement. The delegation measure can be ordered only by the employer, and for its validity the consent of the employee is not required.
The delegation measure is ordered in the interest of the employer, exercising the discretionary power conferred by law. He is the only one able to appreciate the need for delegation, but the right to order the delegation cannot be exercised abusively, in the sense that the measure cannot have a harassing character.
According to the Labor Law, respectively art. 43 and 44: Art. 43. The delegation represents the temporary exercise, at the disposal of the employer, by the employee, of some works or tasks corresponding to the service attributions outside his place of work.
Art. 44. (1) The delegation may be ordered for a period of maximum 60 calendar days in 12 months and may be extended for successive periods of maximum 60 calendar days, only with the consent of the employee. The employee’s refusal to extend the delegation cannot constitute a reason for his disciplinary sanction.
(2) The delegated employee has the right to the payment of the transport and accommodation expenses, as well as to a delegation allowance, under the conditions provided by law or by the applicable collective labor contract.
However, although well defined in practice and often used by employers to carry out their economic activities in more places than the registered office, the delegation was often confused by both employers and employees, with another regulated institution by the Labor Law, respectively secondment.
Secondment according to art. 45 of the Labor Code “is the act by which the temporary change of the job is ordered, from the disposition of the employer, to another employer, in order to execute some works in his interest. Exceptionally, the secondment may also change the type of work, but only with the written consent of the employee”.
The article immediately following the quoted one above also establishes the conditions under which this measure can be ordered:
“(1) The secondment may be ordered for a period not exceeding one year.
(2) Exceptionally, the period of secondment may be extended for objective reasons that require the presence of the employee at the employer where the secondment was ordered, with the agreement of both parties, every 6 months.
(3) The employee may refuse the secondment ordered by his employer only exceptionally and for good personal reasons.
(4) The seconded employee has the right to the payment of transport and accommodation expenses, as well as to a secondment allowance, under the conditions provided by law or by the applicable collective labor agreement”.
Although etymologically similar, the two institutions present some noteworthy differences, which have a different impact on the place where the employer is to fulfill the duties provided in the individual labor agreement:
- The delegation may be ordered for a maximum period of 60 days within 12 months, while the secondment may be refused for exceptional reasons, and the duration of the secondment may not exceed 1 year, except for the employee’s agreement;
- The work performed by the employee in case of delegation is done in the interest of the same employer, while in case of secondment, the work will be performed in the interest of the employer to which he was seconded;
- The individual employment contract during the delegation period is not suspended, as the work is to be performed for the same employer, but in a different place than the one initially provided in the individual labor agreement, and in case of secondment, the law allows the possibility of suspending the individual employment agreement;
- In case of delegation, the salary obligations will remain in charge of the employer who ordered the delegation, while in case of secondment, the obligations will fall on the employer to whom the secondment was ordered, as he is the one who benefits from his services.
The analysis of the provisions of the Labor Law shows especially the fact that the employee does not have the possibility to refuse the delegation, as the legislator did not expressly provide the employee with this possibility, as he did in other cases. For example, regarding the detachment of art. 46 paragraph (3) of the Labor Law expressly provides that: “The employee may refuse the secondment ordered by his employer only exceptionally and for good personal reasons”, the possibility of the employee to refuse the secondment.
Therefore, both the employee and the employer will have to pay attention to the measure ordered, as the two institutions will reflect on the rights and obligations resulting from the individual labor agreement differently from those initially stipulated. It is also natural for this to happen, because, in the end, both institutions are exceptional legal means of unilaterally modifying the individual labor agreement.