On 12 February 2014, the National Labour Council (NLC) has entered into the long-awaited CBA on the motivation of the dismissal. By doing so, the social partners take a new step towards the harmonisation of the employment status of blue-collar workers and white-collar workers. As from 1 April 2014, an employer must in principle be able to give a reason for the dismissal of a blue-collar or white-collar worker.
Up till now, Belgian employment law adhered to the principle that an employer was not obliged to inform the worker of the reason for his dismissal or to provide proof hereof, except in specific cases. The most typical exceptions are the dismissal for serious cause and the dismissal of employees who benefit from a protection against dismissal.
Also in this regard, an important distinction between blue-collar and white-collar workers existed. An employer who dismissed a blue-collar worker, had to be aware of the rules on “arbitrary dismissal” (art. 63 of the Employment Contracts Act). In case of violation of these rules by the employer, the blue-collar worker was entitled to an indemnity of six months of salary. White-collar workers, however, did not benefit from the same protection. They could appeal to the theory of “abusive dismissal”, but this placed them in an inferior position compared to blue-collars in terms of burden of proof.
The unified employment status would abolish this distinction. However, the implementation of this intention, expected from the social partners, took some time. The CBA n°109, which has just been published, introduces a unified regime on the motivation of the dismissal. This regime consists of the next two guiding principles:
- Each dismissed worker has the right to know the concrete reasons which have led to his dismissal. If not communicated in writing by the employer on his own initiative, the worker can request the employer to explain the reasons for dismissal. The worker addresses this request to the employer by registered mail within two months after the end of the employment contract or, in the case of notice, within six months after the notification thereof, without exceeding two months after the end of the employment contract. If the employer does not respond within two months after the receipt of the request, he owes a lump-sum civil fine of two weeks of salary.
- A dismissal of a worker hired for an indefinite period for reasons which do not relate to the worker’s capability or conduct or to the operational requirements of the undertaking, and which would have never been decided by a normal and reasonable employer, is an “unjustified dismissal”. The worker can dispute the reason for dismissal before the labour court. If the unjustified - meaning “manifestly unreasonable” - character of the dismissal is admitted, the employer owes damages for an amount between 3 and 17 weeks of salary. The height of damages depends on the degree of unreasonableness.
The fact that the dismissal must be “manifestly” unreasonable, implies a marginal review by the court of the unreasonable character of the reason for dismissal. As a consequence, the labour jurisdictions must not assess the opportunity of the employer’s policy.
Please note that the CBA mentions a considerable number of exemptions, such as workers dismissed during the first six months of their employment or in the frame of collective lay-off or closing down. Exceptions are provided as well for blue-collar workers subject to lower notice periods for a limited (e.g. diamant industry, timber and furniture, clothing) or unlimited (construction) period of time. For them, the rules on “arbitrary dismissal” remain (temporarily) applicable.
CBA n°109 enters into effect on 1 April 2014 and applies to dismissals implemented or notified as from this date.
According to the advice of the NLC, it is intended that the lump-sum civil fine and the amount of damages would be exempted from social security contributions. Based on the information we received, the social partners requested the government to amend the social security legislation accordingly in good time.
Practical guidelines:
- Make sure that the reason for each dismissal notified as from 1 April 2014 is evidenced and is not “unjustified” or manifestly unreasonable;
- File a written trace of the remarks, assessments, etc. of the employees;
- Make sure that that a request to explain the reasons for dismissal received from a dismissed worker is duly followed-up and answered timely.
Should you require further information on this topic, please do not hesitate to contact us.
