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27 April 20227 minute read

Be Aware April 2022

Can wearing a face mask incorrectly justify dismissal for serious cause?

As everyone is well aware by now, the Belgian government issued a number of measures in the context of the COVID-19 pandemic, which were set out, among others, in the Ministerial Decree of 28 October 2020 on urgent measures to limit the spread of COVID-19.

In one specific company, the obligation to wear a face mask was in force. One employee, who’d been employed for some time as a temporary worker and subsequently on the basis of an employment contract of indefinite duration, did not comply with this obligation. As a result, the employee received verbal reminders and two written notices for not wearing a face mask on 29 July 2020 and 30 August 2020. Accordingly, following new instances where the employee failed to comply on 25 October 2020 and 30 October 2020, the employer decided to proceed with a dismissal for serious cause.

The employee contested the dismissal for serious cause and claimed an indemnity in lieu of notice and compensation for a manifestly unreasonable dismissal.

In its judgment of 11 January 2022, the Brussels Dutch-language labour tribunal took into account the fact that it was indisputably shown, based on the documents, that the employee had received several warnings for not complying with the safety rules, as a result of not wearing or not correctly wearing a face mask.

Therefore, according to the tribunal, it was not serious (on the part of the employee) to argue that the face mask was always worn correctly, that there was a (verbal) dispute, or that the face mask fell off due to the employee's thick beard or when he breathed in. The fact that the employee argues that he does physical work that requires effort was not at issue according to the tribunal. The tribunal did, however, take issue with the fact that:

  • no action was taken in response to multiple (oral and written) warnings from the employer;
  • the importance of wearing a face mask was clearly not acknowledged;
  • the employee took the view that wearing a mask was not required (eg because he was in the open air); and
  • the employee completely minimized the importance of wearing a mask, which is in violation of the applicable obligation.

Also, according to the labour tribunal, the argument that the employee was not aware of the applicable regulations cannot be accepted. For example, employees were informed by means of two personnel announcements (dated 23 July 2020 and 30 July 2020) and several information sheets within the company of the fact that it was mandatory to wear a face mask and that face masks were provided free of charge.

Therefore, the labour tribunal found that the employee in question violated the applicable instructions on the sanitary safety rules several times in a limited time period.

The labour tribunal then stated that the employee's defence (which involved denying the facts and minimizing the relevance of wearing a face mask, despite the applicable obligation and instructions given by the employer in the context of the existing COVID-19 pandemic) was incomprehensible and unacceptable, not only putting his own safety at risk, but also his colleagues’ safety. The labour tribunal then went on to point out the (business) economic and social consequences of non-compliance with legal obligations and contamination.

According to the labour tribunal, the (persistent) attitude of the employee immediately and definitively removed the established trust in the employment relationship. As a result, the serious cause was well founded, and no indemnity in lieu of notice or compensation for manifestly unreasonable dismissal was due.

Persistent non-compliance with safety instructions and, more specifically, not wearing a face mask may constitute a serious cause.

Jascha Kolesnyk

What does the EU Directive proposal on adequate minimum wages entail?

In October 2020, the European Commission adopted a proposal for a directive on adequate minimum wages.

The idea behind this Directive proposal is to improve working conditions by ensuring that workers in the EU have access to minimum wage protection provided by adequate minimum wages, and thus allowing for a decent living for workers and their families.

However, the aim of the directive is not to establish a single minimum remuneration at European level. This would be contrary to the European treaties and would be financially catastrophic for some Member States. Moreover, the Directive proposal would not require all Member States to introduce statutory minimum wages if they do not have them. Rather, the Directive proposal encourages either the adoption of a statutory minimum wage or the determination of minimum wages by collective bargaining agreements between workers and employers.

In all Member States, the Directive proposal aims to:

  • promote collective bargaining agreements on wages, by ensuring effective involvement of social partners and setting up a bipartite or tripartite body for social partners' consultation with decision-making powers
  • improve the enforcement and monitoring of the minimum wage protection established in each Member State.

In statutory determination of the minimum wage, the Directive proposal encourages:

  • the elaboration of national frameworks to set and update statutory minimum wages. This would be achieved through:
    • the adoption of clear and stable criteria to guide the setting and updating of the statutory minimum wage, as well as the creation of advisory bodies to advise authorities on the subject;
    • automatic indexation mechanisms for statutory minimum wage updates;
    • the adoption of indicators to guide the assessment of the adequacy of statutory minimum wages;
    • the assessment of the minimum wage in light of the national reference income;
  • limiting to a minimum the use of minimum wage variations and deductions; and
  • ensuring the effective involvement of the social partners in setting and updating the legal minimum wage.

The Council and the European Parliament must now agree on a final text before it can be adopted.

In Belgium, the minimum wage is not defined statutorily, but through national and sectoral collective bargaining agreements adopted by social partners. It’s therefore important for each employer to pay attention to the minimum wages provided for at the sectoral level, which must itself reach at least the national minimum wage. In this respect, it’s worth noting that social partners agreed last year to gradually increase the national minimum wage. Accordingly, a first increase was implemented on 1 April 2022; since that date, the national minimum wage increased to EUR1,806.16 (previously EUR1,725.21).

Angela Broux and Frédérique Gillet

1 Proposal of 28 October 2020 for a Directive of the European Parliament and of the Council on adequate minimum wages in the European Union
 European Commission, Impact assessment of the Proposal for a Directive of the European Parliament and of the Council on adequate minimum wages in the European Union, SWD (2020) 245 final, 28 October 2020, pp. 35-36; European Commission, Adequate minimum wages in the EU
 Ibidem, pp. 30-37
4 Collective Bargaining Agreement No. 43/15 of 15 July 2021, on the guarantee of a minimum average monthly income