Should the employer have to justify the employee’s dismissal?

Contrary to what many may think, Belgian labour law does require employers to formally justify a dismissal. Employees can be dismissed verbally or in writing with the 'simple' announcement that they will be dismissed from a certain date. So without any detail about the motives that played a role in this dismissal. Are employees always left out in the cold when they are dismissed?

CAO 109 gives employees more rights

On 12 February 2012, the national collective agreement 109 on the grounds for dismissal was concluded, which introduced new obligations for all sectors from 1 April 2014. However, the basic principle remains that an employer is under no obligation to justify a dismissal of his own accord. However, a dismissed worker or employee does have the right to ask the former employer by registered letter within two months after the dismissal about the concrete reasons that led to their dismissal.

Reaction of employer

If the former employer refuses to respond to the employee’s request to justify the dismissal, the employer must pay compensation equal to two weeks’ salary. Apart from this obligation to provide information, the former employer may also run into additional problems if it turns out afterwards that the dismissal of the worker or employee was ‘manifestly unreasonable’. Clearly unreasonable dismissal occurs if the dismissal was not related to the suitability or conduct of the dismissed employee or is not justified by the requirements regarding the operation of the company.

Manifestly unreasonable dismissal

Was the dismissal not related to the suitability or conduct of the dismissed worker, or to the company’s operational needs? It must also appear that no normal and reasonable employer would have dismissed the worker or employee in similar circumstances. If the dismissal is manifestly unreasonable, this can cost the former employer 3 weeks to a maximum of 17 weeks of salary, in addition to the normal severance payment. The labour court will determine the actual amount of compensation proportionate to the degree of manifest unreasonableness of the dismissal. This compensation can be combined with the first compensation of two weeks in the event of refusal to comply with the former employee’s request to state the reasons for the dismissal.

Worst conceivable scenario for employer

In the worst-case scenario, the motivation problem can cost an ex-employer 19 weeks of salary. The above rules do not apply if the dismissal occurs during the first 6 months of employment. Nor do these rules apply in the event of termination of an employment contract for temporary work, student work or in the event of dismissal with a view to early retirement or statutory pension. Finally, this obligation to state reasons does not apply in the context of restructuring, as the reasons must be disclosed to the works council by law.

Good to know

In other countries, such as France, for example, a formal dialogue between employer and employee must take place prior to dismissal. In the Netherlands, even the courts are involved to explain the reasons for the dismissal. This does not apply in Belgium. However, this is not a guarantee for employers and they must, therefore, be very careful when dismissing an employee.


Tags: Dismissal
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