Dismissal for serious cause: describe in detail the facts underlying the serious cause
19/05/2021

In the event of dismissal of an employee for serious cause, the letter notifying the employee of the serious cause must describe the facts underlying the serious cause in a precise and detailed manner. This point was recalled by the Court of Cassation in a judgment of 8 March 2021.

When an employee is dismissed for serious cause, the employer must provide the facts underlying the serious cause.
The facts justifying the serious cause must be described in a very precise manner so as to enable the employee to know exactly what he is accused of and to enable the judge to weigh the seriousness of the facts.
In this case, a female employee was dismissed for serious cause because of various facts of which she was accused: consulting, during working hours, internet sites unrelated to the performance of her employment contract, consuming alcoholic drinks found in her office, being in an intoxicated state at work, behaving rudely towards clients and superiors, leaving work early and smoking in her office. Some of these facts were established by a bailiff.
The Labour Court that had to judge the case, notes that the letter does not mention the dates on which each of the above facts took place, the names of the websites consulted, the names of the clients and superiors involved, or the types of alcoholic drinks consumed. The Court considers that a simple reference to the findings of the bailiff is meaningless if the letter does not clearly state what the bailiff actually found. The copy of the bailiff’s reports were not attached to the letter.
The Labour Court therefore considered that the letter notifying the employee of the serious cause did not enable her to know with sufficient accuracy the facts of which she was accused. The Court therefore ruled that the dismissal for serious cause was irregular and ordered the employer to pay the employee a severance indemnity.
The employer lodged an appeal in cassation against this decision, arguing that the Labour Court had violated the legal concept of serious cause.
The Court of Cassation upheld the decision of the Labour Court.
First of all, the Court of Cassation recalls that there is no legal obligation to mention the date on which the facts constituting the serious cause were committed. Nevertheless, in this case, the Court of Cassation noted that not only the dates of the facts were not mentioned, but also other factual elements were not specified in the letter notifying the serious cause (type of alcoholic drinks, type of internet sites, identity of clients and superiors, etc.).
The Court of Cassation therefore confirms the decision of the Labour Court insofar as it deduced that the facts were not sufficiently specified in the letter notifying the serious cause.

Action point

In the event of dismissal of an employee for serious cause, the employer must draft the letter notifying the facts justifying the dismissal for serious cause very precisely in order to avoid the dismissal for serious cause being judged irregular and having to pay an indemnity in lieu of notice.

Related : Claeys & Engels

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