Principle: power to terminate employment
The power to terminate employment is a feature of Belgian dismissal law. Either party to an employment contract has the right to unilaterally terminate it at any time without stating grounds, provided a notice period is given or severance is paid.
Exception: protection against dismissal
Certain categories of workers are protected against dismissal. Additional requirements have to be met before such employees can be subject to “regular dismissal”.
This is for instance the case with employees that are under a work suspension or reduction scheme such as “time credit” (Collective Bargaining Agreement no. 77bis) or are on parental leave (CBA no. 64): they may only be dismissed on grounds bearing no relation to their parental leave or time credit.
If this rule is breached, the employer is due the employee “protection compensation” at a flat rate of 6 months’ pay, over and on top of all other severance payments.
The onus of proving the grounds for dismissal
Neither CBA 77bis nor CBA 64 lays down where the burden of proof lies when an employee claims that the prohibition against dismissal has been breached and demands protection compensation. In principle, it should be the standard rules of evidence that apply and it ought to be up to the employee to show that he has been dismissed on the ground of his parental leave or time credit.
However, the Court of Cassation thinks differently. In a judgment of 14 January 2008, the court held that the onus of proof in such cases lies with the employer. Lower courts are particularly meticulous in applying this supreme court decision.
In three recent judgments, the employment courts in Brussels have imposed the onus of proof on the employer, and the evidence adduced by the employer has been dismissed
In three recent decisions, the Brussels Employment Court and Employment Appeal Court have laid the onus of proving that a dismissal had nothing to do with time credit/parental leave on the employer, under reference to the Cassation decision of 14 January 2008.
Moreover, the courts in these three cases held that the evidence produced by the employer was insufficient:
- In a judgment of 14 December 2009, the Brussels Employment Court was asked to render judgment where an older employee on 1/5 time credit was dismissed further to restructuring of the department he worked in. Some of the department’s work activities were outsourced to a service provider, resulting in the loss of certain jobs. A number of employees could be redeployed within the new structure. In so doing, a procedure agreed with the works council was followed. However, the employee in question did not possess the requisite knowledge or skills set in order to be redeployed, and was dismissed along with nine other workers. Although the employment court acknowledged the reality of the restructuring, it took the view that the employer had not followed the procedure as laid down in respect of the employee and awarded protection compensation.
- Further, in a decision of 19 March 2010, the Brussels Employment Appeal Court pronounced a decision concerning an older female employee on half-time time credit who was dismissed because of her poor performance. A year earlier, the employer had talked to her about her negative attitude and poor performance. The terms of the discussion were set down in writing, as was her promise to improve in the future. Specific performance targets were agreed. The performance issues continued and were discussed at a number of management committee meetings. On several occasions, the employee was given verbal warnings, but no improvement was forthcoming. Although the employer produced the written confirmation together with the minutes of the management committee meetings and other internal memoranda and e-mails in court, the employment appeal court took the view (contrary to the employment court at first instance) that this evidence was unilateral and lacked objectivity and was thus incapable of demonstrating that the dismissal bore no relation to the time credit. The employer was ordered to pay the protection compensation.
- In a last case (Brussels Employment Court, 18 June 2010), the facts concerned an employee with a technical job working for an airline; he committed two serious aircraft maintenance errors over five months’ time. The employee was talked to about this and was stripped of certain responsibilities. The evidence in court also attested to this. After the second incident, the employee was fired. On that day of all days, he had submitted an application for parental leave, which moreover failed to meet the formal requirements for approval. The employment court took the view that the two errors could not be attributed to the employee and he had not therefore been dismissed for just cause. The employee was awarded protection compensation.
Conclusion and opinion
Even though, in each of the three cases, the employer had good grounds for dismissal, the Brussels employment courts did not regard the evidence produced as adequate proof that the dismissal bore no relation to the parental leave/time credit in question. Moreover, the cases go very far, not only laying the burden of proof on the employer but also taking a very stern view of whether the dismissal was opportune.
It is possible that this strict approach is a consequence of the case law that provides that severance in cases of time credit is to be calculated on the basis of the reduced work done and the courts are endeavouring to offset that rule by awarding protection compensation.
It is noticeable that, in each case, there were especially strong feelings about the lack of a recorded delivery, at least a written, warning to the employee dating from before the dismissal. Hence, it is of crucial importance that, when dismissing an employee on career reduction, your case should be very carefully prepared:
- Send the employee at least one written default notice in which you make it clear that a repetition may result in dismissal.
- Call the employee to at least one discussion at which he is able to defend himself and improve his conduct, and set the terms of the discussion down in writing.
- If you yourself lay down a dismissal procedure, do so in writing and follow the procedure to the letter. Document any reasons why you deviate from the procedure.
