Until recently, Belgium was one of the last countries in Europe where the blue and white-collar workers were treated differently, inter alia regarding the termination of contracts of employment. While the employer was not required to specify the reason for the dismissal of a white-collar worker, the dismissal of a blue collar-worker had to be justified on the basis of the worker’s behavior or professional aptitude or on the basis of economic grounds.
With the act of 26 December 2013 on the harmonization of the status of blue-collar and white-collar workers (hereafter: “the Harmonization Act”), identical rules have been introduced for both groups of workers regarding the notice periods in case of dismissal.
Furthermore, a new national collective labor agreement (hereafter: “CLA n° 109”) has been agreed by the trade unions and the employer’s federations, which introduces a general obligation for the employers to justify the reasons for dismissal. CLA n° 109, which entered into force on 1 April 2014, provides for new requirements to be fulfilled by the employers when proceeding with a dismissal.
CLA n° 109 lays down the following rights for the workers in case of dismissal:
- the right for the worker to know the reasons for the dismissal, and
- a special compensation if the dismissal was “manifestly unreasonable“.
1. SCOPE OF COLLECTIVE LABOR AGREEMENT (CHAPTER II CLA N° 109)
CLA n° 109 is binding to all the employers of the private sector and their workers, both white-collar and blue-collar, with a contract of employment.
CLA does, however not apply to workers dismissed:
- during the first 6 months of occupation ;
- during a temporary agency contract ;
- during a student contract ;
- to join the unemployment with the benefit of the company allowance regime ;
- in view of taking up legal pension on the first day of the month following that during which they reach the legal retirement age ;
- following final termination of activities ;
- following company closure ;
- within the context of a collective dismissal.
CLA n°109 is neither applicable to employees for whom the employer must follow specific dismissal procedures determined by law or collective labor agreements, nor to employees who are affected by a multiple dismissal due to restructuring, as defined at business-sector level.
Finally, CLA n°109 does not apply to blue-collar workers for whom reduced notice periods are structurally applicable, as provided by Article 70, § 4 of the Harmonization Act. This measure concerns mainly the workers employed by the construction industry.
2. THE RIGHT TO KNOW THE REASONS OF THE DISMISSAL (CHAPTER III CLA N° 109)
Principle
CLA n°109 does not introduce an obligation for the employer to spontaneously give a reason for dismissal. It rather provides for a right for the dismissed worker to know the precise reasons that led to his or her dismissal.
Procedure
The worker who wants to know why he has been dismissed must send a written request to his employer by registered mail:
- in case of an immediate dismissal, within a period of 2 months after the end of the contract.
- in case of a dismissal with a notice period, within a period of 6 months after the notification of the dismissal, without exceeding 2 months after the end of the contract.
The employer must answer by registered mail within a period of 2 months as of the reception of the request of the worker. The content of the mail must explain to the worker the precise reasons that led to his or her dismissal.
The employer does not have to respond to the employee’s request if he has informed the worker spontaneously, in writing, of the reasons for dismissal.
Sanction
If the employer fails to respond to the employee’s request, the employee will be entitled to compensation equal to 2 weeks of salary. This amount can be combined with compensation following an manifestly unreasonable dismissal (see hereafter).
This sanction is not applicable if the employee was already informed spontaneously by the employer of the reasons for dismissal.
3. MANIFESTLY UNREASONABLE DISMISSAL (CHAPTER IV CLA N°109)
Definition
A manifestly unreasonable dismissal is the dismissal:
- which is based on reasons unrelated to the worker’s ability or behavior or unrelated to operational needs in the undertaking, institution or service and
- which would have never been decided by a normal and reasonable employer.
This notion is only applicable to workers with a contract of employment of indefinite duration.
In practical terms, the judge will have to decide - upon request of the dismissed worker - whether the dismissal is “manifestly unreasonable” or not.
The control performed by the judge concerns the unreasonable character but not the circumstances of the dismissal or the opportunity to dismiss. The judge has a limited margin of appreciation and the assessment will only be based on whether the reasons are related to the worker’s behavior or ability or the operational needs and whether a normal and reasonable employer would have taken the same decision.
Burden of proof
Depending on the question whether the employer has communicated the reasons for the dismissal to the worker or not, the burden of proof regarding the existence of a manifestly unreasonable dismissal lies with:
The worker, if the employer has informed the employee of the reasons for dismissal in accordance with CLA n°109.
The employer, if the worker was not informed of the reasons for dismissal, either spontaneously or following the employee’s written request in accordance with CLA n°109.
The worker, if he did not request for any clarification on the reason for dismissal as stipulated in CLA n°109.
Sanction
In case of manifestly unreasonable dismissal, the employer must pay the equivalent of between 3 weeks and 17 weeks’ salary as compensation depending on the importance of the manifestly unreasonable character of the dismissal.
This compensation cannot be combined with any other termination payments, with the exception of a compensation in lieu of notice, a non-compete indemnity, a clientele indemnity or a supplement on top of social benefits.
4. ENTRY INTO FORCE (CHAPTER VI)
Collective labor agreement n° 109 entered into force on 1st April 2014.
5. PRACTICAL ASPECTS – CONCLUSION
Collective labor agreement n° 109 establishes a significant limitation to the employer’s freedom to dismiss.
Each dismissal, taking placefrom 1st April 2014, must be justified by the employer, both for blue-collar and for white-collar workers.
From a practical point of view, we recommend employers to:
- Notify, in writing, the grounds for dismissal at the very moment of dismissal, in order to prevent the risk of forgettingthe justification.
- Collect enough evidences concerning the reasons of dismissal (for example: warning letters sent to the worker, complaints from third parties, written statements, … ).
- Justify the dismissal in a very clear and detailed manner. This is important because the written justification will be the first element which will be taken into consideration by the judge in order to determine whether the dismissal is manifestly unreasonable or not.
- Review their assessment processes and the administration of personnel records. Accurate evaluation processes, based on objective elements which are put in writing and well organized will become even more crucial in the future to justify dismissals in the absence of an economic reason.
