On 12 February 2014, 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”).
CBA 109 applies to all dismissals as of 1 April 2014, except for workers who are dismissed:
- during the first six months of their employment (prior and consecutive employment contracts for definite duration or temporary agency work for an identical function with the same employer are taken into account to determine the first six months of employment);
- during an employment contract for temporary agency work;
- during an employment contract for students;
- in the framework of unemployment with company surcharges;
- to terminate an employment contract for indefinite duration as from the first day of the month following the month in which the employee reaches the legal pension age;
- in the framework of a definitive cessation of the activities;
- in the framework of a company closure;
- in the framework of a collective dismissal;
- if a specific dismissal procedure must be respected based on a law or CBA (candidate works council, member works council, etc.);
- in the framework of multiple dismissals as defined on sector level.
The employees are entitled to know the reason for their dismissal.
The employee can request the reason for his/her dismissal by registered letter within two months after the employment contract 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 (day on which the notification takes effect) and without exceeding the two month period from the end of the employment contract.
As from the third working day after the sending of the registered letter, the employer has two months to provide the reason for dismissal to the employee by registered letter. The registered letter should contain all elements which allow the employee to know the exact reason for his/her dismissal.
However, the employer who already informed the employee of the reason for his/her dismissal (e.g. in the termination letter) is not obliged to reply to the request of the employee, if the information supplied allows the employee to know the exact reason for his/her dismissal.
If the employer does not provide a reason for dismissal, the employee is entitled to two weeks’ additional severance pay.
The employee is able to claim unlawful dismissal before a Labour Court. If the Labour Court qualifies the dismissal as unlawful, the employee will be entitled to an additional severance pay equal to between 3 and 17 weeks of remuneration.
A dismissal is considered to be an unlawful dismissal 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 given by a normal and reasonable employer.
In addition, the employee can also claim actual damages based on the provisions of the Civil Code.
The burden of proof is determined as follows:
- If the employer provided the reason for dismissal in accordance with CBA 109, the party who makes a claim 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) not unlawful;
- 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 who are dismissed and for whom the exception of the fixed notice periods applies (i.e., an exception for specific blue collar workers, based on sector-specific regulations, which entitles them to a lower notice period than those provided for in CBA 75 - transitional measure), the old rules regarding the unfair dismissal remain applicable until 31 December 2015 (6 months additional severance pay, burden of proof lies with the employer). However, for these workers a dismissal is, until 31 December 2015, considered to be unlawful if the reason for the dismissal is not based on the capability or behaviour of the employee or the operational needs of the employer.
For blue collar workers without a fixed place of work (excavation work, road work, construction work, demolition, etc.) the above exception is not limited in time. As a result, the old rules regarding the unfair dismissal continue to apply without limitation (6 months additional severance pay, burden of proof lies with the employer). However, for these workers a dismissal is also considered to be unlawful if the reason for the dismissal is not based on the capability or behaviour of the employee or the operational needs of the employer.
