The Professional Adequacy and the Performance of the Employee. Differences and Similarities

• Author: Ioana Cristina Cristescu
• Profession: Doctoral School of Law, Bucharest University of Economic Studies, Romania
• Pages: 230-250

The Professional Adequacy and the Performance of the Employee.

Differences and Similarities

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PhD. student Ioana Cristina CRISTESCU

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Abstract

The career path of the employee is complex and not without risks. Thus, achiev-

ing performance becomes the very reason for establishing individual employment rela-

tionships, as they determine the collective performance of the organization and determine

the success of the business. Therefore, the concern for performance is present at all times

preceding the employment, during the probation period and during the execution of the

individual employment agreement and culminates with the solution of a supreme dilemma

when dismissing for professional in adequacy. The Labour Code itself requires various

interpretations and clarifications in order to be able to transpose the concepts regarding

employee performance. Therefore, the present study critically examines the doctrine in

the matter, compares the legal texts and interpretation solutions of the courts and applies

the common sense of human resources man agement to determine the way to be followed

where the legislator is silent. Thus, the conclusion is clear that at all stages of the em-

ployment relationship the employer has in view the performance of the employee, but the

objectives, criteria, methods of assessment and measurement are different, depending on

the purpose of its evaluation and legal co nsequences and from the perspective of human

resources management. The result of this study is a set of benchmarks regarding the eval-

uation of the performance and the evaluation of the professional adequacy, the interfer-

ences and delimitations between them and other related institutions, interpreted in a mul-

tidisciplinary context.

Keywords: performance, professional inadequacy, evaluation criteria, objec-

tives, dismissal.

JEL Classification: K31

1. Professional correspondence at key moments of the employment

relationship

It is unanimously recognized the right of the employer to assess the pro-

fessional adequacy of the employee during his worklife. This right naturally

arises from its own freedom to select the right personnel for the job by applying

available recruitment techniques, but also to continue to analyse his adaptation/

adequacy within the organization by using the probation period.

Referring to the framework in which the dismissal of the employee for

1

This paper was co -financed by the Bucharest University of Economic Studies during the PhD

program.

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Ioana Cristina Cristescu - Doctoral School of Law, Bucharest University of Economic Studies,

Romania, ioanacostea2001@yahoo.com.

Dynamic Elements in the Contemporary Business Law 231

professional inadequacy can be decided, constantly, the judicial doctrine

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and

practice presents the professional inadequacy as circumstance of an objective or

subjective nature that leads or is capable of leading to lower professional perfor-

mances than those which, reasonably, the employer is entitled to expect from the

employee and which implies not knowing the rules specific to a function, profes-

sion or profession.

Thus we can say that the achievement of the performance is the very rea-

son for establishing the individual labour relations, since they determine the col-

lective performance of the organization and determine the success of the business.

The professional career of the employee is complex and not without dan-

gers, therefore it is appropriate to analyse all the moments when his performance

becomes relevant and is evaluated by the employer by specific means (appropri-

ate methods and tools) with different effects on the employment relationship.

What are the legal requirements in carrying out a procedure on professional ade-

quacy, as it can be delimited by other legal situations, which are the consequences

of not observing the procedure, are just some of the questions we ask ourselves

in this article.

1.1. Performance, professional correspondence and probationary pe-

riod

In contrast to the initial vision of the Labor Code

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on the professional

adequacy of the employee, the current legal provisions indicate the need to make

a noticeable difference between approaches towards eventual inadequacy during

probation period compared to one found after a long working period, in which

the employment relationship becomes stable.

At the beginning of the employment relationship, the appraisal of em-

ployee's adequacy leaves room for errors (especially since the employer does not

have the opportunity from the beginning to test the employee in a real working

environment, having only possibility to apply work sample). The errors of ap-

praisal that can occur during the recruitment process must, therefore, be corrected

with speed and minimum effort.

The evolution of the professional life implies a continuous interest of ad-

aptation from employer’s side in taking over new, more efficient technologies, as

well as an effort to update the professional knowledge and of continuous learning

from employee’s side, called to use these technologies, that is why by executing

3

Alexandru Ţiclea, quoted from Raluca Dimitriu, Employee dismissal. Romanian and Comparative

Law, Ed. Omnia UNI SAT, Brasov, 1999, p. 192.

4

The initial wording of art. 31 o f the Labor Code regarding the probation period did not contain

references to the termination of the individual employment contract during or by the expiration of

the probation period based on a simple notification o f either party, so that such termination was

treated at the time as a simplified procedure of professional adequacy appraisal.