In three judgments issued in 2013, three Courts of Labour seem to have adopted a common position on the question of knowing when a dismissal for serious cause given by a person who did not have the power to dismiss may still be ratified by the empowered person.
1.- Dismissal for serious cause: very strict deadlines
When an employee commits an act that results in an irremediable breakdown in the relationship between him and his employer, the employer may dismiss him without notice and without any compensation. To do so, the employer has to respect two very strict deadlines1.
• He must notify the dismissal to the employee within three days after he has become aware of the serious cause.
• He then has three days to give the reasons for his dismissal of the employee.
Practically, this raises the very important question of the starting point of the first deadline, which is the day when the employer acquires sufficient knowledge of the facts invoked as serious cause. After the expiration of this deadline, it is impossible to dismiss an employee without notice.
2.- The problem of the dismissal for serious cause by a person not empowered to do so
When a person exceeds his powers and dismisses an employee, case law admits that the dismissal may be ratified subsequently. The ratification may be either express or implied. For example, the fact that the empowered representative establishes and signs the final closure account or that he prohibits the employee from returning to work are implied ratifications of the dismissal2. Similarly, the simple fact that the competent person does not question the dismissal as time goes by may be equal to a ratification. This is why the employee must challenge the validity of the dismissal within a reasonably short period of time3.
The above is the principle, but, in practice, Courts experience difficulties with this question: in order for the dismissal for serious cause to be valid, when does the empowered person have to ratify it?
3.- Case law
3.1 The three main streams encountered in case law
Authors4 identify different positions in case law:
• The first stream in case law - which is a bit outdated - states that the ratification must take place within three days after the non-empowered person has had knowledge of the facts invoked as serious cause5. This is the most stringent position.
• The second stream estimates that the ratification must take place within three days from the time when the competent person is aware of the facts justifying the serious cause6.
• The third stream does not take the three-day deadline into account. It bases its reasoning on the general legal principle that the ratification takes effect retroactively on the date when the non-competent person notified the dismissal7. This position has been adopted by the Court of Cassation. However, in the same decision, the Court insisted on the fact that retroactive application may not infringe on the acquired rights8.
3.2 Recent decisions
Three decisions issued during the year 20139 recall the principle of the retroactive application of the ratification that takes effect on the day of the dismissal.
But, three days after the employer is aware of the acts constituting serious cause, the employee has a right not to be dismissed without notice. Retroactive application may not infringe on acquired rights. That is why the Courts of Labour consider that the empowered person should ratify the dismissal within three days after becoming aware of the serious breaches. They thus seem to agree on the second case-law stream. The date when the competent person becomes aware of the facts is thus of significant importance.
4.- Conclusions
Three upper Courts have reached the same conclusion on this very complicated topic. However, given the complexity of the question, it may not yet be concluded that the position adopted by these three Courts will be followed unanimously.
To conclude, the best an employer can do is to verify who is empowered to dismiss employees within a company in order to avoid any claim relating to such an unclear matter. A clear mandate, in writing, remains the safest solution.
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1 Act of 3 July 1978 concerning employment contracts, article 35.
2 Lagacie, G., "congé pour motif grave donné par une personne non habilitée à licencier : (enfin) l'unanimité sur le délai de ratification", Licenciement & démission - lettre d'information mensuelle, Kluwer, Novembre 2014; Court of Labour Brussels, 7 February 1990, JTT, 1190, p. 445; Court of Labour Liège, 3 May 1993, JTT, 1994, p.77; Court of Labour Brussels, 31 January 1996, JTT, 1997, p. 138.
3 Court of Cassation, 6 February 2006, n° F-20060206-1 (S.05.0030.N).
4 Lagacie, G., "congé pour motif grave donné par une personne non habilitée à licencier : (enfin) l'unanimité sur le délai de ratification", Licenciement & démission - lettre d'information mensuelle, Kluwer, Novembre 2014; W. Van Eeckhoutte, V. Neuprez, Compendium Droit du travail, Waterloo, Kluwer, 2010, n°3740 et 3925.
5 Court of Labour Brussels, 11 September 1984, R.W., 1984-1985, p. 2408; Court of Labour Liège, 10 March 1986, T.S.R., 1987, p. 209; Court of Labour Antwerp, 15 June 1998, Chron. D.S., 1998, p. 510.
6 Court of Labour Brussels, 13 November 2009, J.T.T., 2010, p. 74; Court of Labour Liège, 7 December 2009, J.T.T., 2010, p. 91.
7 Jafferali, R., Confirmation, ratification et condition suspensive, Bruxelles, Larcier, 2011, pp. 151 et s.
8 Court of Cassation, 13 January 2003, n° S.02.0025.F.
9 Court of Labour Liège, 20 September 2013; Court of Labour Mons, 23 October 2013, J.T.T., 2014, p. 77; Court of Labour Brussels, 20 February 2013, JTT, 2013, p.275.
