One of the specific aspects in M&A transactions that a buyer should consider when conducting due diligence on the target are related to labour relations. In both share and asset deals, specific investigations should be conducted with respect to employment-related matters.

In Romania, since 2020 the trend has been the amendment of the legislation for flexibilization of the labour relations in the context of the pandemic. In addition to the teleworking regime already available, the work from home implemented lately at a large scale forced the Romanian legislator to adopt additional legal measures on the digitalisation of employment relations, including those provided by the Government Emergency Ordinance no. 36/2021 ("GEO 36/2021") on the possibility to sign with electronic signature the documents in the field of labour relations.

Historically, this possibility existed in Romanian legislation before 2021, considering the provisions of Law 455/2001 on electronic signature and of the Regulation (EU) no. 910/2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC. Thus, under Law 455/2001, the deed in electronic form bearing extended electronic signature based on a qualified certificate is assimilated with the deed under private signature (handwritten signature). A valid Qualified Electronic Signature (QES) as defined by the Regulation 910/2014 meets the above requirements. Therefore, prior to GEO 36/2021, both employers and employees had, in principle, the possibility to sign the documents in the field of labour relations with a QES. Nevertheless, this method has rarely been used in practice by Romanian employers, for various reasons, including the presence of employees mainly at the office, the costs and formalities for obtaining the electronic signature or the reluctant approach on this matter of some labour authorities.

The Labour Code, as amended by GEO 36/2021, provides that an advanced or qualified electronic signature accompanied by an electronic time stamp or a qualified electronic time stamp and the qualified electronic seal may be used for the preparation of all documents in the field of labour relations resulting at the conclusion of the individual employment contract, during its execution or at the termination of the contract, under the conditions established by the internal regulation and/or the collective employment agreement, as per the law. The employer cannot oblige the candidate or the employee to use the electronic signature and the parties must use the same type of signature on a document, either handwritten or electronic signature.

No reference to the communication of the documents signed with electronic signature is made by GEO 36/2021, so, the employers that want to use this type of signature in their activity need to corroborate these new provisions with the existing ones on communication of documents.

It is important to underline that most of the documents in the field of the labour relations are part of the employee's file which must mainly include original documents and some of these documents should be communicated in original to employees. The documents signed with electronic signature must be sent to employees by electronic means to be considered communicated in original, the hard copy of a document signed with electronic signature not being an original.

And finally, we should emphasize that the Labour Code provides specific rules of communication in relation to disciplinary sanctioning decision, as detailed below, which should be observed by employers.

Drawing line, an important question is whether, in practice, all documents in the field of labour relations should be signed with electronic signature even if the employer is willing to implement this type of signature into its organization. To answer this, the following aspects should be considered:

As regards the disciplinary decisions, under Article 252 (4) of the Labour Code, these must be handed over personally to employee with signature of receipt or, in case of refusal of receipt, by registered letter to its domicile/residence. Besides the above communication methods, the decision can be also communicated in hard copy by bailiff ("executor judecatoresc" in Romanian language). The communication methods mentioned above are applicable exclusively to disciplinary decisions and, unfortunately, no express reference to the possibility of communication by electronic means is made by law in this case. In these conditions, the safest approach from legal point of view is to sign the disciplinary decisions with handwritten signature and communicate them to employees in original hard copy, by any of the above methods.

Additional rules on communication of the individual dismissal decision was implemented by the Romanian High Court of Cassation and Justice ("HCCJ"). Thus, HCCJ ruled by Decision no. 34/2016 that the individual dismissal decision can be communicated by e-mail provided that the employee has communicated these contact details to employer and there is a custom made between the parties to use this form of communication. The decision thus communicated by e-mail, in PDF format, must comply only with the formal requirements imposed by the Labor Code (i.e. written form) and not those imposed by law for the documents signed with electronic signature.

It results that the individual dismissal decision may be also signed with hand signature and communicated in pdf format to a personal e-mail address of the employee, provided that this has previously been used between the parties. Communication in pdf format of this type of decision brought a flexibilization of the labour relations and is commonly used in practice by employers. It is important to underline that the Decision no. 34/2016 refers strictly to the individual dismissal decision and should not be extended to other type of documents in the field of labour relations.

To be on the safe side considering the Decision no. 34/2016, the employee's personal e-mail address should be also used for communication of the individual dismissal decision signed with electronic signature.

The option of communication by e-mail of the individual dismissal decision does not exclude other communication means, such us handing over personally to employee, registered letter or bailiff.

Excepting the above specific situations, in lack of any other legal provisions, it may be inferred that both the employee's business e-mail address and the personal one may be used for communication of documents in the field of labour relations signed with electronic signature. Anyhow, the internal regulation and/or the collective employment agreement should provide specific rules in this respect.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.