The requirement to justify dismissal
29/12/2014

Collective Labour Agreement (CLA) n° 109 introduces an obligation to state the reasons for dismissal.

Belgium has always been a country where dismissing employees was considered easy but expensive. As a rule of thumb, the employer was not required to justify dismissal unless the employee was protected against it.

With the Act of 26 December 2013 on the status harmonisation of blue and white-collar workers (hereafter the "Harmonisation Act") reducing dismissal costs of white-collars, there was a need to introduce a dismissal justification requirement and a general prohibition on manifestly unjustified dismissals. Trade unions and the employer's federation consequently agreed on Collective Labour Agreement (CLA) n° 109 introducing an obligation to state the reasons for dismissal (1). CLA n°109 enters into force on 1 April 2014.

1. Scope of CLA n° 109 (Chapter I CLA n°109)

CLA n°109 is applicable to employees, both blue and white-collars, with an employment contract.

However, it does not apply to employees dismissed

  • during the first 6 months of their employment. Previous and subsequent employment contracts of a definite duration, or interim work, for the same function with the same employer are taken into account to determine whether the first 6 months have been achieved.
  • during a temporary agency contract.
  • during a student contract.
  • to join the unemployment with company allowance regime.
  • in view of taking up legal pension the first day of the month following that during which they reach the legal retirement age.
  • following final termination of activities.
  • following company closure.
  • within a collective dismissal context.

CLA n°109 is neither applicable to employees for whom the employer must follow specific dismissal procedures determined by law or CBA's, nor to employees who are victims of a multiple dismissal due to restructuring, as defined at business-sector level.

Finally, only Chapter V of CLA n°109 applies to employees for whom reduced notice periods are structurally applicable, as stipulated by Article 70 §4 of the Harmonisation Act.

2. The employee has the right to know the reasons for dismissal (Chapter III CLA n°109)

Principle

CLA n°109 does not introduce an obligation to spontaneously give a reason for dismissal. It rather provides the dismissed employee with the right to know the concrete reasons that led to his or her dismissal.

Procedure

Consequently, the employer must only state the reasons for dismissal following the employee's explicit and written request, which should be done within a certain timeframe, namely:

  • within 2 months after the end of the employment contract, when no notice period is observed. The employee must then send the request by registered mail.
  • within 6 months following the notification of dismissal, when a notice period is observed, without however exceeding 2 months after the effective end date of the employment contract. The 6 months term starts the third working day following the registered notice letter's stamp date or on the day of notification by the bailiff.

The employer must inform the employee within 2 months after receiving his or her request, which is deemed to occur on the third working day after the registered letter was posted by the employee. The response must contain all elements clearly providing the employee with the concrete reasons for his or her dismissal.

The employer does not have to respond to the employee's request if the employee was already informed spontaneously, in writing, of the reasons for dismissal.

Sanction

The employer not responding to the employee's request must pay the employee the equivalent of 2 weeks' salary as compensation. This amount can be added to compensation following apparent unjustified dismissal (see next section).

3. Manifestly unjustified dismissal (Chapter IV CLA n°109)

Notion

A manifestly unjustified dismissal is defined as the dismissal of an employee with an employment contract of indefinite duration,

  • based on reasons unrelated to the employee's aptitude or behaviour or to operational needs in the company, institution or service; and,
  • which would never have been carried out by a normal and reasonable employer.

The dismissal's manifestly unjustified nature has nothing to do with its circumstances. Its assessment is purely based on whether the reason(s) for dismissal are related to either the employee or the business and whether a normal and reasonable employer would have taken the same decision. Only the dismissal's unjustified character is examined, not whether the employer had other more reasonable alternatives. Employment tribunals only have a limited margin for appreciation.

Burden of proof

The burden of proof lies with:

  • the employee, if the employer informed the employee of the reason(s) for dismissal in accordance with CLA n°109;
  • the employee, if he or she was too late in requesting clarification on the reason for dismissal as stipulated in CLA n°109;
  • the employer, if the employee was not informed of the reason(s) for dismissal either spontaneously or following the employee's written request in accordance with CLA n°109. The burden of proof's shift to the employer may encourage employers to spontaneously justify a dismissal if the appropriate reason's underlying argumentation is weak.

Sanctions

The employer must pay the equivalent of between 3 to 17 weeks' salary as compensation depending on the importance of the manifestly unjustified character of the dismissal. However, if the employee estimates that his or her damage is higher, he or she can still claim compensation for the actual damage.

This compensation cannot be combined with any other termination payments, with the exception of a compensation in lieu of notice, a non-compete indemnity, a clientele indemnity or a supplement on top of social benefits.

4. Abusive dismissal (Chapter V CLA n°109)

Chapter V of CLA n°109 is applicable to employees for whom reduced notice periods are structurally applicable, as stipulated by Article 70 §4 of the Harmonisation Act.

Notion

An abusive dismissal is defined as the dismissal of an employee with an employment contract of indefinite duration based on reasons that are unrelated to the employee's aptitude or behaviour, or not based on operational needs in the company, institution or service.

Burden of proof

The burden of proof lies with the employer when the employee contests his or her dismissal.

Sanctions

The employer must pay the equivalent of 6 months' salary as compensation, unless a CLA declared generally binding by Royal Decree determines it differently.

This compensation can be combined with compensation in lieu of notice, the notice period observation, the protection indemnity due following a pregnant woman's wrongful dismissal, the protection indemnity of protected employee (candidate) representatives and the protection indemnity for wrongfully dismissed employees taking paid educational leave.

5. Conclusion

CLA n°109 entails quite an important change in Belgian dismissal rules. As of 1 April 2014, the employer must justify dismissal further to the employee's written request and is liable for any manifestly unjustified dismissal.

As such, employers may be required to review their evaluation process and the administration of personnel files. Good evaluation processes, based on objective elements which are put in writing and well organised will become even more crucial, in the future, to justify dismissals in the absence of an economic reason.

Zie ook : Deloitte Legal ( Mrs. Inge Derde ,  Mr. Stijn Demeestere )

[+ http://www.laga.be/newsroom/legal-news/the-requirement-to-justify-dismissal]

Mrs. Inge Derde Mrs. Inge Derde
Counsel
[email protected]
Mr. Stijn Demeestere Mr. Stijn Demeestere
Partner
[email protected]

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