Motivation of the dismissal and sanctions

Justification for resignation and arbitrary resignation

1. Justification for resignation

Since 1 April 2014, employers can be obliged to provide a motivation if they dismiss an employee (CLA no. 109). If employers fail to motivate when asked by the employee, they expose themselves to a fixed fine of 2 weeks' wages or a fine of minimum 3 and maximum 17 weeks in case of arbitrary resignation.

It was initially announced as an obligation, so that many employers had done this automatically at that time. This led to unfair situations during that transition period, as in case of dispute by the employee, the employer had to prove the correctness of the given reasons. Many colleagues of the dismissed employee often experience this as disloyal, so that providing evidence is very difficult in practice.

It is therefore important as an employer to be aware of the legal regulations in this regard (and to collect some evidence in advance), but also as an employee it is important to know these and to make use of them if necessary.

➢ Which employees?

Collective Labor Agreement no. 109 has come about as a result of the introduction of a unified statute between blue-collar and white-collar workers. It therefore applies to blue-collar and white-collar workers and therefore replaces article 63 of the Employment Contracts Act, which in principle was applicable to blue-collar workers until 31/03/2014.

Until then, white collar workers could appeal to the general theory of abuse of rights. We will come back to this later.

It must be an open-contract and the employee in question must have a seniority of at least six months (prior and consecutive fixed-term employment contracts or temporary agency work for an identical position with the same employer are included in the calculation of the seniority).

Furthermore, this regulation does not apply in the following cases:

• The employee has been dismissed with a view to gaining access to the unemployment regime with company supplement;
• The employee is dismissed under an employment contract for an indefinite period, from the first day of the month following the month in which the employee reaches the statutory retirement age;
• The employee has been dismissed because of the permanent cessation of the activity, the closure of a company, a collective dismissal or a multiple dismissal;

The employee is dismissed within the framework of a “special resignation procedure” laid down by law or collective labor agreement (for example: the employees who are protected in the context of the social elections or the prevention advisers).

The employee has been fired for urgent reasons.

➢ Duty / right to state reasons?

Dismissal motivation is in the first place a right for the employee and not an obligation in the sense that it is up to the employee to request the motivation. The employer is not obliged to motivate the dismissal of his own accord, he can but must not. An employee may sometimes have reasons to hesitate to make such a request, as it could be a disadvantage for the later career.

However, if the employee submits a request to the employer for reasons for the dismissal, the employer is obliged to comply with this under penalty of a fixed fine of two weeks' salary.

1. Request by registered letter

If an employee is dismissed without the employer motivating this dismissal, the employee has the right to submit a request for formal motivation to the employer. He does this by registered letter.

How much time the employee has for this depends on whether or not a notice can be given:

• if no notice has to be given or if this is less than 4 months, the employee has a period of two months from the moment the employment contract ends,
• if notice of termination of more than 4 months has to be performed, the employee must not later than six months after notification of the notice (counting from the 3rd working day after the date of sending the registered letter that cancels the agreement) request justification.

2. Response from the employer

Once the request has been sent, the employer is obliged to reply within a period of two months (to be calculated from the third working day after the date of sending the employee's registered letter).

3 Flat-rate fine

If the employer fails to respond or responds late, he will owe the employee a fixed fine of 2 weeks' salary. This fine is not subject to the payment of social security contributions.

If the employer does not respond or responds late, it is advisable as an employee to turn to a lawyer to collect the fine. He will therefore immediately check whether there may be an arbitrary resignation.

1. Arbitrary dismissal

In addition to an obligation to state reasons for a resignation, Collective Labor Agreement no. 109 also prohibits arbitrary dismissal.

➢ What does a random dismissal entail?

Random dismissal occurs when the dismissal of an employee is based on:

• For reasons unrelated to the suitability or behavior of the employee, or
• The reasons that are not based on the necessities of the operation of the enterprise, institution or service, and
• Which would never have been decided by a normal and reasonable employer.

The employer, of course, remains free to a certain extent to decide what is reasonable. It is not up to the court to rule on the expediency of the employer's policy.

➢ Sanction?

The sanction in case of arbitrary dismissal consists of a compensation of which the amount lies between a minimum of 3 and a maximum of 17 weeks' salary. The court will determine the amount depending on the degree of the manifest unreasonableness of the dismissal. The courts often place the burden of proof of the reasons invoked on the employer. The employee, on the other hand, must prove its arbitrary nature.

However, the employee can claim compensation for the actual damage suffered if, in his opinion, this is greater. It is then up to the employee to prove the employer's fault as well as the damage he has suffered and demonstrate the causal link between the two facts.

➢ Procedure?

The assessment whether or not the dismissal is arbitrary is done by the labor judge.

Depending on whether the employer has motivated or not and whether the employee has requested the motivation, the burden of proof will differ:

• The employer has communicated the reasons for the dismissal on his own initiative or at the explicit request of the employee: the party invoking anything bears the burden of proof.
• The employer has not responded to the employee's request for motivation: the employer must provide evidence of the reasons invoked for the dismissal, showing that the dismissal is not manifestly unreasonable.
• The employee has not sent a motivation request to the employer: the employee must demonstrate that there are elements that indicate the manifest unreasonableness of the dismissal.

1. Article 63 Employment Contracts Act

As briefly mentioned above, Article 63 of the Employment Contracts Act was in principle applicable to blue-collar workers until 31/03/2014 and is therefore no longer applicable as a result of the new regulation elaborated in CLA no.109.

However, employees from the construction sector who are employed in certain activities at mobile sites are excluded from the scheme in collective labor agreement no. 109 until 31/12/2017.

They can only rely on collective labor agreement No. 109 from 01/01/2018.

Until then, they reverted to the regulation contained in Article 63 of the Employment Contracts Act.

Article 63 states that an employee may only be dismissed for reasons related to their conduct or suitability or which are based on the necessities of the operation of the company, institution or service. It is up to the employer to prove that the dismissal is not arbitrary. The compensation provided for in article 63 in case of arbitrary dismissal is equal to six months' salary.

However, the application of Article 63 could be questioned. The Constitutional Court ruled on this on 30 June 2016 in response to a preliminary question regarding civil servants (after all, no arrangement similar to that in CLA no.109 has been established for them), and refuses even longer to accept the consequences of art. 63 Employment Contracts Act.

“B.7.1. In this respect, contrary to what is requested by the Council of Ministers, there is no reason to enforce the consequences of Article 63 of the Employment Contracts Act, read in conjunction with Article 38 of the Act of 26 December 2013, after 31 March 2014.

…..

B.7.3. Pending the action of the legislator, it is up to the courts, in application of general contract law, to safeguard the rights of all employees in the public sector without discrimination in the event of manifestly unfair dismissal, where they can be guided, where appropriate by Collective Labor Agreement No. 109. ”