The social stakeholders concluded Collective Bargaining Agreement No. 109 regarding the obligation to provide a reason for dismissal (CAO nr. 109 betreffende de motivering van het ontslag / CCT N° 109 concernant la motivation du licenciement) (“CBA 109”) (See, VBB on Business Law, Volume 2014, No. 2, p. 8, available at www.vbb.com) . CBA 109 has applied to most dismissals since 1 April 2014. There are exceptions, such as dismissals during the first six months of employment; dismissals in an employment contract for temporary agency work; and dismissals with the view to opening a legal pension in the framework of a definitive cessation of activities.
Pursuant to CBA 109, employees are entitled to be informed in writing about the reason for their dismissal.
Should the Reason for a Dismissal Be Included in the Termination Letter?
CBA 109 does not require the employer to include the reason for the dismissal in the termination letter (there is a different procedure for termination for serious cause) and the employer should only provide the reason for the dismissal at the request of the employee. Still, an employer is free to include the reason for the dismissal in the termination letter.
The employee can request the reason for his/her dismissal in a registered letter within two months after the employment contract has ended. If the employment contract is terminated with a notice period, the request must be made within 6 months after the notification of the notice (the day on which the notification takes effect) and without exceeding the two month period following the end of the employment contract.
As from the third working day after the sending of the employee’s registered letter, the employer has two months to provide the reason for dismissal to the employee in a registered response letter.
What Should the Registered Response Letter Say?
The registered response letter should contain all elements that allow the employee to know the exact reason(s) for his/her dismissal. This entails stating the reason(s) in sufficient detail so that the employee understands why the employment relationship was terminated.
CBA 109 does not stipulate that the employer should provide proof of the reasons mentioned in the registered letter. In practice, the employee sometimes makes such a request, but the employer is not obliged to comply.
An employer who has already informed the employee of the reason for his/her dismissal in writing (e.g. in the termination letter) is not obliged to reply to the registered letter of the employee, if the information supplied earlier allows the employee to know the exact reason for his/her dismissal. However, in such a case it is still recommended to reply to the request and refer to the termination letter.
Consequences If No Reason Is Provided
If the employer does not provide a reason for dismissal, the employee is entitled to two weeks’ additional severance pay. In addition, the employer will bear the burden of proof if the employee brings a claim for unlawful dismissal before a labour court.
A dismissal is considered as unlawful if the reason is not based on the capability or behaviour of the employee or the operational needs of the employer and the dismissal would not have been carried out by a normal and reasonable employer.
If a dismissal is considered as unlawful by the labour court, it will grant an additional severance pay worth between 3 and 17 weeks of remuneration.
The burden of proof is determined as follows:
- If the employer provided the reason for dismissal in accordance with CBA 109, the claimant will bear the burden of proof;
- If the employer did not provide the reason for dismissal in accordance with CBA 109, the employer will bear the burden of proving that the reason(s) for dismissal was (were) lawful;
- If the employee did not request the reason for his/her dismissal within the framework of CBA 109, the employee will bear the burden of proving that the dismissal was unlawful.
For blue collar workers without a fixed place of work (excavation work, road work, construction work, demolition, etc.) the old rules regarding unfair dismissal remain applicable. This means that such blue collar workers will be entitled to 6 months’ additional severance pay. The burden of proof will lie with the employer.