The manager decided. HR implemented. The company lost the case.

Every time I hear, a few months after the conclusion of an employment dispute, that “the court did not understand the reality inside the company,” my thoughts return to the same image: a boardroom on a Monday morning, where the people present are convinced they are discussing reorganisation, yet in truth they are laying the foundations of a file that will sooner or later land on a judge’s desk.

The scene is so common it has almost become predictable. The company reviews its results, costs rise, the group demands efficiency, a department no longer delivers the expected value, or simply the business model changes. None of this is unusual. On the contrary, it is part of the normal life of a healthy organisation that must constantly adapt to a market that shows no patience for those who hesitate to decide.

The discussion begins naturally, and for a while each participant views only their own corner of reality. The CFO speaks about costs, the COO about efficiency, the manager of the affected department about results, and human resources tries to turn all these intentions into an implementation plan. Seen from the outside, the meeting appears to run flawlessly. There are figures, there are arguments, there is a clear objective and there are competent people trying to reach it.

Yet almost never do I ask whether they have the right to reorganise the activity. The law does not forbid a company from becoming more efficient, nor does it oblige an employer to preserve an organisational structure that no longer serves the business’s economic interest. The question I choose to ask is quite different, and each time it produces a few seconds of silence.

What problem are you, in fact, trying to solve?

Experience has shown me that the answer to this question is far more valuable than any discussion about provisions of law. Because, depending on the answer, the entire legal construction of the project changes.

If the problem is an economic one, then it must be demonstrated as such. If the reorganisation aims at operational efficiency, then every internal document—from the analysis that underpinned the decision to the organigram that results after implementation—must tell the same story. If the objective is cost reduction, you cannot justify the elimination of a position with arguments that, a few weeks later, are contradicted by the company’s own decisions. And if the real problem is, in fact, the performance of an employee, then reorganisation is not merely a legally questionable solution; above all, it is the wrong managerial solution, because it attempts to resolve an individual problem using an instrument designed for the reorganisation of activity.

Here lies the difference between a company that manages legal risks and one that merely reacts to them. The first builds its decision starting from the reality it can prove, continuously verifies the consistency of its documents, and accepts that, in any eventual dispute, the judge will not examine the intentions of management but the evidence those intentions have left behind. The second starts from the conclusion and later tries to find arguments to support it. More often than not, it is precisely this reversal of logic that turns a legitimate business decision into a legal vulnerability.

This is why the role of legal counsel does not begin on the day the dismissal decision must be drafted, nor in the moment the company receives the court summons. If that is the instant at which counsel is called to the table, it is highly likely the organisation has already missed the most important part of its work. The value of a legal counsel does not lie in the ability to explain what the Codul muncii (the Romanian Labour Code) provides after the decision has been taken, but in the skill to participate in the process by which that decision is formed, to understand the economic objective pursued by management, and to construct the legal path that allows the company to achieve it without turning a reorganisation project into a dispute.

From this perspective, the most costly employment disputes do not begin in front of a court. They begin in a boardroom where everyone speaks about efficiency, yet no one notices that, with the first decision recorded in the minutes, the company has already begun to write its own defence.