In order to calculate the notice period, when making an employee redundant, the employee’s behaviour will not be taken into account. On the other hand, if the notice period given is too short and during that period the behaviour of the employee justifies a dismissal for serious cause, the employee loses the right to claim the supplementary indemnity in lieu of notice, in other words account will be taken of the employee's behaviour.
In the Act of 3 July 1978, only two options are available for employers wanting to make an employee redundant. Either an appropriate notice period must be calculated according to the principles set out in, among others, article 39 of the Act, or there must be serious cause, in line with the principles set out in article 35 of the Act, and thus no notice period will need to be calculated.
Hence, in Belgian law there is no middle ground. Even if an employee’s behaviour is in itself the sole reason for the redundancy, the employee will not be penalised and thus the employee will remain entitled to a severance indemnity. The behaviour mentioned above must, of course, not merit a dismissal for serious cause, otherwise article 35 of the Act will apply.
This is in stark contrast to a recent ruling by the Court of Cassation (Cass. 26 February 2007). This case pertains to the right to claim a supplementary indemnity in lieu of notice if the original notice period had been incorrectly calculated and was thus too short. The hitherto valid case law was of the opinion that an indemnity in lieu of notice, following the calculation of a notice period, is an acquired right and therefore once this entitlement has arisen, the employee will not be able to lose it.
In the ruling cited above, an employee was entitled to a longer notice period than given by his employer. During the, albeit insufficient, notice period, the employee was dismissed due to serious cause. The Court of Cassation upheld the prior judges’ reasoning that the behaviour of the employee, during the notice period, did justify the loss of the right to claim the supplementary indemnity. Conversely, this is not the case for termination such as in the event of the death of the employee; here, the heirs will be able to claim the supplementary indemnity.
This recent ruling has overturned the case law that prevailed up to then. This ruling has caused confusion within both the academic and legal worlds and has left judges uncertain; some Labour Courts follow this decision and others reject it. Those of the opinion that this recent path chosen by the Court of Cassation will rapidly be abandoned are, however, mistaken; in another more recent Court of Cassation ruling in 2009 (Cass. 5 January 2009), the Court once again upheld the same reasoning.
Only time will tell if the behaviour of an employee will be able to influence the length of the notice period and therefore the amount of the indemnity in lieu of notice. If indeed such a path is chosen, legislative reform would need to introduce a third option between that of the dismissal in article 39 of the Act (and the articles mentioned therein) and the termination due to serious cause provided in article 35 of the Act. It remains to be seen as to whether or not it would be opportune to expand the legislation thus far applicable.
