Public employers: the principle of a preliminary hearing now part of the legislation on employment agreements
14/11/2017

Since the Constitutional Court's decision of 6 July 2017, the Employment Agreements Act of 3 July 1978 must be interpreted as requiring a public authority to hear an employee prior to his/her dismissal. This judgment, which puts into question the judgment of the Court of Cassation of 12 October 2015, adds a principle of good administration into the legislation on employment agreements.

Previously

In a judgment dated 12 October 2015, the Court of Cassation held that the Act of 29 July 1991 concerning the formal justification of administrative acts, and the general principles of good administration – including the principle of a preliminary hearing – are not applicable when a public employer dismisses a contractual employee (see Eubelius Spotlights December 2015). This judgment answered a controversial question, which had long been the subject of lively debate between French-speaking and Dutch-speaking legal scholars. The Constitutional Court has brought this issue back to life with its judgment of 6 July 2017, which goes in the opposite direction.

The Constitutional Court's judgment of 6 July 2017

In the case submitted to the Constitutional Court, a contractual employee of the municipality of Evere argued that the municipality had violated his rights of defence (the right to be heard and the principles of good administration) by dismissing him without granting him a preliminary hearing. The French-speaking Labour Tribunal of Brussels submitted two preliminary questions to the Constitutional Court:

Does the Employment Agreements Act of 3 July 1978 violate articles 10 and 11 of the Constitution if the Act is interpreted as undermining the right of a contractual employee of a public authority to be heard prior to his/her dismissal, whereas this right is granted to statutory employees, in accordance with the audi alteram partem principle?
Does the Employment Agreements Act of 3 July 1978 violate articles 10 and 11 of the Constitution if the Act is interpreted as not undermining the right of a contractual employee of a public authority to be heard prior to his/her dismissal?

The Court answered these questions, holding that the Employment Agreements Act would violate the principles of equality and non-discrimination enshrined in articles 10 and 11 of the Constitution if it were interpreted as allowing a public authority to dismiss a contractual employee for reasons related to his/her conduct or attitude without being compelled to hear the employee prior to the dismissal.

The right to a preliminary hearing: no justification for different treatment

According to the Court, the right to a preliminary hearing – a general principle of good administration – applies to both statutory and contractual agents. Contrary to the municipality of Evere's claims, the objective difference between a statutory employment relationship and a contractual employment relationship cannot be considered as justifying a difference in treatment in the exercising of this right.

Hence, the Employment Agreements Act must be interpreted as not preventing a public authority from respecting the audi alteram partem principle and giving a contractual employee a hearing prior to his/her dismissal.

Implications of the judgment

With this judgment, the Constitutional Court has introduced a principle of good administration into the contractual employment relationship between a public authority and a contractual agent, through the principle of equality and non-discrimination. The judgment of the Court of Cassation of 12 October 2015 is thereby undermined.


Authors:
Brunhilde Van den Haute, Attorney 
Véronique Pertry, Partner

Related : Eubelius


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