HEADLINES LABOUR & EMPLOYMENT
CAN A PROTECTED EMPLOYEE VALIDLY WAIVE THE PROTECTION INDEMNITY?
In these Headlines, we examine a recent judgment of the Belgian Supreme Court concerning the protection of (candidate) employee representatives1 . On 16 May 2011, the Supreme Court decided that a protected employee who is dismissed without observance of the dismissal procedure, can in principle validly waive the protection indemnity. Certain conditions must however be met.
This case is about an employee who was a candidate in the social elections in 2000 and elected as an employee representative in the works council and the committee for prevention and protection at work. On 2 October 2003, a so-called "negotiated dismissal" or "negotiated departure" took place. This is a dismissal which is agreed upon between parties, for whatever reason (e.g. to allow the employee to benefit from early retirement, to avoid a dismissal for serious cause,...). The employee did first resign from her mandates. On that same day, she was dismissed (without observance of the Act of 19 March 1991) and the parties entered into a settlement agreement. In this settlement agreement the employee waived her entitlement to a protection indemnity.
Despite of the settlement, the employee asked her reintegration in the company approximately two weeks later. As the employer refused, the employee claimed a protection indemnity. The employer refused to pay given the employee's waiver. The question arose whether the employee had been able to validly waive the protection indemnity.
The Supreme Court confirmed that the protection against dismissal of (candidate) employee representatives is of public order. However, the protection indemnity is not of public order, but of mandatory law. As a result, a protected employee can in principle validly waive the protection indemnity. A waiver is however only valid if done when the protection indemnity is already acquired. According to the Supreme Court, the protection indemnity is "only acquired from the moment it is certain that the employee will not be reintegrated in the company within the legally prescribed period".
After the dismissal, the employee has a period of 30 days to ask for the reintegration (by registered letter). Subsequently, the employer has 30 days to decide. In the case at hand, the employee waived the protection indemnity before it was certain whether she would be reintegrated or not. Therefore, her waiver was not valid, so the employer still owed her the protection indemnity was due.
For the daily practice, we keep in mind that a protected employee can in principle waive the protection indemnity, but that this waiver is only valid if, at the time of signing of the waiver, it is certain that the employee will not be reintegrated in the company within the legal period. An employer who is considering a "negotiated departure" needs to be very cautious given the substantial (financial) risks for the employer.
1These protected employees can only be dismissed for economic or technical reasons or for serious cause and provided that a specific dismissal procedure is complied with. If not, these employees are entitled to a protection indemnity equal to 2 to 8 years remuneration.
For further information, contact: employment@liedekerke.com
