CLA no. 109 – Manifestly unreasonable dismissal as from the first day of employment?
09/03/2021

Indemnification for manifestly unreasonable dismissal

In light of the government compromise designed to abolish the distinction between blue-collar workers and white-collar workers, various new measures were introduced, such as the assimilation of notice periods as from 1 January 2014 and the abolishment of the “carensdag/jour de carence” for blue-collar workers, but also the right for employees to know the reasons that have led to their dismissal. In this respect, Collective Labour Agreement (CLA) no. 109 concerning the reasoning of dismissals was concluded in the National Labour Council on 12 February 2014.

The latter CLA deals with two main aspects:

  • the right for employees to know the specific reasons that have led to their dismissal; and
  • the right to an additional indemnity corresponding to 3 up to 17 weeks’ gross salary if the dismissal is found to be manifestly unreasonable.

CLA no. 109 clearly sets out the rules and procedures under which an employee can claim such indemnification. In this respect, however, the CLA explicitly excludes certain categories of employees from the scope of CLA no. 109, among which all employees during the first 6 months of an employment contract.

The facts in the case at hand

The employee in the case at hand was hired on the basis of an employment contract for a defined term of 1 month on 27/09/2017, followed by an employment contract concluded for an undefined term on 28/10/2017. 

By means of a registered letter sent on 8 March 2018, the employer put an end to the employment relationship on grounds of cause (“dringende reden/motif grave”), i.e. (alleged) aggression towards a client. The reasoning of the dismissal for cause was provided by registered letter on 13 March 2018.

The employee contested the dismissal for cause. Consequently, he pursued the case with the French speaking Labour Tribunal of Brussels, claiming (among other things) payment of an indemnity in lieu of notice and an indemnity for manifestly unreasonable dismissal. 

The judgment of the Labour Tribunal of Brussels

Due to lack of proof, the Labour Tribunal rejected the dismissal for gross misconduct, and therefore awarded the employee an indemnity in lieu of notice amounting to 4 weeks’ salary. 

Next, the Labour Tribunal investigated whether the employee was entitled to an indemnity for manifestly unreasonable dismissal. 

In this respect, the Tribunal held that the exclusion of employees from the scope of CLA no. 109 during the first 6 months of employment had not been substantiated by the social (i.e. industrial) partners in their commentary, nor in the preparatory debates (or documents) leading up to CLA no. 109. 

What is more, in the preparatory stage, the social partners had repeatedly referred to article 63 of the Employment Contracts Act on the arbitrary dismissal of blue-collar workers, which does not make any distinction in this regard. 

Therefore, the Labour Tribunal found the distinction a violation of the principle of equality in so far as it treats the same category of employees differently on the basis of a subjective or in any case unjustified criterion, i.e. the seniority of the employee within the company. 

Considering that the employee was hired for an undefined term, the Labour Tribunal ruled that the protection against manifestly unreasonable dismissal also applied during the first 6 months of employment.

Takeaway

In this recent judgment, the French speaking Labour Tribunal of Brussels ruled that the condition of being employed for minimum 6 months could not be applied, because it was contrary to the principle of equality.

This implies that, already immediately after recruitment, the employee was entitled to the protection offered by CLA no. 109. In other words, the employee (i) should have been able to exercise the right to be informed of the reasons for dismissal even if the dismissal took place before he had been employed for 6 months, and (ii), consequently, he could also claim payment of an indemnity corresponding to 3 to 17 weeks' salary for manifestly unreasonable dismissal.

At this time, it is difficult to assess whether other labour tribunals and courts will follow suit. We would in any case recommend documenting the reasons that have led to the dismissal of an employee for all dismissals, including dismissals occurring within the first 6 months of employment. 

Related : PwC Legal ( Mr. Bart Elias ,  Mrs. Pascale Moreau )

[+ http://www.pwclegal.be]

Mr. Bart Elias Mr. Bart Elias
Partner
[email protected]
Mrs. Pascale Moreau Mrs. Pascale Moreau
Partner
[email protected]

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