In a recent case before the labour court in Mechelen, an employee working in a restaurant was fired for serious case. Her employer justified this dismissal by claiming she was unlawfully absent because she only informed the employer of her incapacity for work via a WhatsApp message, while the work regulations prescribe that the manager must be notified by telephone.
Can the dismissal for serious cause by the employer be justified?
The labour court did not agree with the employer’s reasoning considering the fact that the latter had been informed properly about the employee’s incapacity, even though this was done through WhatsApp.
Article 31, §2 of the Employment Agreements Act stipulates that the employer must be notified immediately about the employee’s incapacity but does not determine how the employee must do this. The employee can therefore do this by telephone, but also by text message, fax, etc.
The fact that the employer's work regulations stipulate that the notification to the employer must be made (verbally) by telephone is found contrary to Article 6 of the Employment Agreements Act as it even increases the employee's obligations, which is not possible under Belgian employment law.
The court therefore concluded that since the employee justified her absence in time, the unjustified absence is not proven. Reporting incapacity for work via WhatsApp is therefore not considered a serious mistake that makes every professional collaboration impossible. The dismissal for serious cause was therefore considered to be unlawful by the labour court.
Can this dismissal be considered manifestly unreasonable?
Although the dismissal for serious cause was not found legitimate by the court, qualifying this dismissal as manifestly unreasonable was a bridge too far.
Apparently, the employee posted several messages on social media during her sick leave which showed she was enjoying life to the fullest. Although she was allowed to leave the house during the sick leave, the labour court ruled that any normal and reasonable employer would have been offended by these posts and rejected the claim to qualify this dismissal as manifestly unreasonable.
Conclusion
WhatsApp, Facebook and Instagram: social media and e-communication can no longer be ignored in our society. This does not only influence our everyday private life, but also influences the relationships between employers and employees. Judges better prepare themselves as more and more questions will come!
