Be Aware Belgium March 2016

Be Aware Belgium Series



Employment pensions and benefits

What is considered a flagrantly unfair dismissal? To what extent the employment tribunal may review the decision of the employer to dismiss an employee? How should the amount of a compensation for flagrantly unfair dismissal be determined?

Since 1 April 2015 an employee who is dismissed by his employer can request the latter to provide him with the reasons of this dismissal on the basis of the collective bargaining agreement no 109 on the motivation of the dismissal.

In case of a flagrantly unfair dismissal the employee may be entitled to a compensation amounting up to an indemnity equal to minimum 3 weeks’ remuneration and maximum 17 weeks’ remuneration.

The employment tribunal of Antwerp passed on 9 December 2015 a judgment on a claim related to the payment of a compensation for flagrantly unfair dismissal introduced by an employee who was dismissed during a period of sick leave.

The reasons for the dismissal indicated in the termination letter referred to the long-term absence of the employee and the increased work pressure for his colleagues due to his absence. During the procedure before the employment tribunal the employer indicated that another reason for the dismissal was the fact that the employee had given to understand that he was not planning to take up his work when returning from sick leave, but rather take up holidays and other kinds of leave.

The employment tribunal clarifies in its judgments the principles of flagrantly unfair dismissal and the burden of proof.

The employment tribunal reviews on the one hand whether the reasons are related to the capacity or the behaviour of the employee or the necessities of the company, and on the other hand whether the decision would never have been taken by a normal, reasonable employer. The employment tribunal states that even if the reason for the dismissal is not related to the capacity or the behaviour of the employee, nor the company’s necessities, the dismissal is not flagrantly unfair in case it is not proven that a normal and reasonable employer would not have taken the same decision.

The employment tribunal confirms that only a limited judicial review is possible, as the employer is to a large extent free to decide on what he considers fair.

The employment tribunal states moreover that the employer can bring forward other reasons for the dismissal during the procedure before the tribunal than those already communicated to the employee. In such case, the employer bares the entire burden of proof with regard to those new reasons.

In its judgment of 9 December 2015, the employment tribunal concluded that the employer did not prove the reasons that were invoked during the procedure and that the employer could be blaimed a certain levity. The employment tribunal also stated that the necessities of the company related to the absence of the employee were not proven by the employer.

The employment tribunal therefore concluded that the dismissal was flagrantly unfair and granted a compensation equal to 8 weeks’ remuneration to the employee, taking in consideration the degree of the flagrantly unfairness of the dismissal.

It appears from this judgment foremost that the determination of the amount of the compensation is done rather speculatively, in absence of specific stipulations in this respect in the collective bargaining agreement no 109 and most likely also in absence of guidelines in the case law.

One will have to wait and see how the case law on flagrantly unfair dismissal and on the amount of the compensation evolves.

In any case, it has been confirmed in a clear way by the employment tribunal that the decision of the employer to dismiss an employee can only be submitted to a limited judicial review, and that the employer remains a large power of decision.

Soetkin Lateur

Dutch decree on use of languages and the sanction of nullity

The Decree of 19 July 1973 of the Flemish community regulating the use of languages in social relations between the employers and the employees (the "Decree on Use of Languages") states that the Dutch language shall be used in the aforementioned relations.

Pursuant to article 1 of the Decree on Use of Languages, this applies to all natural and legal persons having a seat of exploitation in the Dutch-speaking region.

Article 10 first paragraph of the Decree on Use of Languages provides that the pieces or actions that are contrary to the stipulations of this decree are null and void. However, article 10 fifth paragraph specifies that this declaration of nullity cannot harm the employee.

In a judgment of 22 January 2016 the Brussels Labour Court had to rule whether an employee could invoke the penalty provided by the Decree on Use of Languages in order for appraisal documents drafted in English to be declared null and void.

It concerned the dismissal for inadequate performance of an employee with dual citizenship, employed at the Belgian plant of an international group. The reason for the dismissal was demonstrated by the employer through appraisal documents that had been drafted in English.

At first instance the Labour Tribunal adhered to the employer's line of reasoning and ruled that the appraisals could be conducted in English, given the cross-border dimension of the employment contract between the parties.

The Labour Court adopted the Tribunal's line of reasoning and based its decision on the judgement of the European Court of Justice dated 16 April 2013

In the aforementioned judgment the Court of Justice stated that nullity provided by the Decree on Use of Languages is not proportionate, as it goes beyond what is strictly necessary to achieve the objectives set out. The Court of Justice considered, among other things:

"However, the parties to a cross-border employment contract do not necessarily master the official language of the member state concerned. In such a situation the creation of a free and informed consensus between the parties requires them to be able to draft their contract in another language than the official language of that member state."

The Labour Court stressed that the judgement of the Court of Justice can only be applied to employment contracts with a cross-border dimension. The Court of Justice deduced the cross-border dimension of the employment contract between the employee and the employer from the elements below:

  • The employer is a company with a Belgian site (a branch), yet is part of an international group; and
  • The employee has got dual citizenship (Dutch/Spanish).

On the basis of the above, the Labour Court ruled that, given the assumption that the employment contract had a cross-border dimension, the employee could not invoke the nullity of the appraisal documents.

The Labour Court ruled that an employee cannot invoke the sanction of nullity of the Decree on Use of Languages if the employment contract has a crossborder dimension.

Laurent De Surgeloose