Be Aware Belgium September 2016

Be Aware Belgium Series

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Under the principle of proportionality, can a serious cause be dismissed considering that the sanction resulting from the serious cause is unreasonable?

In a judgment dated 6 June 2016 (S.15.0067. F/1, available through http://justice.belgium.be/fr), the Court of Cassation had to answer this question.

The appeal in cassation had been lodged against a judgment of the Liege Labour Court dated 12 January 2015.

In that judgment, the Liege Labour Court dismissed the serious cause it had been informed of, considering that the serious cause was not reasonably proportionate to the sanction resulting from it. Whereas the Labour Court acknowledged the severity of the alleged misconduct, it was of the opinion, nevertheless, that, with regard to the sanction resulting from it (loss of employment without notice or indemnity) and the circumstances of the case (in particular twenty-two years of irreproachable service), the serious cause was not "proportionate to the sanction".

As such, the Court of Cassation had to address the following question: when evaluating the serious cause, should the consequences it will have for the employee be taken into account?

As a reminder, article 35 2nd paragraph of the Act of 3 July 1978 regarding employment contracts defines serious cause as "any serious cause which immediately and definitively renders any professional cooperation between the employer and the employee impossible".

These are the three conditions that need to be met:

  • the existence of serious cause by the employee;
  • which immediately and definitively;
  • renders any professional cooperation impossible.

The courts that are competent to rule on a case regarding serious cause have discretionary power. The judge's discretionary power lies at the level of the severity of the misconduct and its impact on the further professional cooperation.

Nevertheless, the judge's discretionary power (taking into account the wording of article 35, 2nd paragraph), does not allow him to link both preceding elements (the severity of the misconduct and the impossibility to continue the professional cooperation) to the disproportion existing between the serious cause and the sanction resulting from it (namely, the loss of employment).

As a consequence, a judge cannot retain a seriouscause and at the same time dismiss the serious cause considering that the serious cause would not be reasonable taking into account the sanction resulting from it.

Frédérique Gillet


Report N° 97 of the national labour council: harmonization of the status blue-collar / white-collar worker in the framework of complementary pensions

According to article 14/4 of the Act of 28 April 2003 regarding complementary pensions and their tax regime and certain complementary social security benefits ("CPL"), the joint committees and/or the sub joint committees which are competent for the same professional categories or for the same company activities should provide the national labour council, by 1st January 2016, 1st January 2018, 1st January 2020 and 1st January 2022 respectively, with a report including an overview of the work that has been carried out in order to abolish the difference of treatment based on the distinction between blue-collar workers and white-collar workers. Article 14/4, para. 2 of the CPL stipulates that, to that end, the joint committees and/or the sub joint committees concerned need to initiate negotiations without any delay, in order to conclude a protocols accord. The conclusion of these protocols accord is an intermediary step which should lead to the conclusion, at the latest by 1st January 2023, of one or several sectoral collective bargaining agreements, the aim of which is to abolish the difference of treatment based on the distinction between blue-collar and white-collar workers, at the latest by 1st January 2025.

Based on the reports referred to in article 14/4 of the CPL, by 1 July 2016, by 1st July 2018 and by 1st July 2020, the National Labour Council has to make an evaluation of the progress made at the sectoral level on the abolition of the difference of treatment based on the distinction between blue-collar and white-collar workers. These evaluations need to be provided to the ministers of Employment and Pensions.

By 1st July 2022, the National Labour Council will provide the aforementioned ministers with an additional evaluation identifying the joint committees and/or sub joint committees that did not submit a protocol accord or if they did, that did not make any additional progress since the submission of the latter in view of the abolition of the difference of treatment based on the distinction between blue-collar and white-collar workers.

The report n° 97 of 7 June 2016 is the first evaluation ofthe National Labour Council on the progress made by the sectors on the aforementioned matter.

In this report, the National Labour Council suggests a plan of approach to the joint committees in the framework of a harmonization process. The report also mentions that it would be advisable for the joint committees to take a "picture" of the company's activities they are responsible for, compared to the sectoral complementary pension plans existing in other joint committees.

Subsequently, the National Labour Council repeats that the joint committees and/or the sub joint committees that are responsible for the same professional categories or for the same companies should, in principle, converge. More specifically, contacts should be established between joint committees and/or sub joint committees. In a next phase the relevant pension plans should be analysed in terms of their content. The reports indicate that several joint committees and/or sub joint committees have already implemented the aforementioned plan of approach.

By 1st January 2018, the sectors should provide their reports to the National Labour Council including an overview of the work performed by them in the framework of the harmonization process.

In report no 97, the National Labour Council made its first evaluation of the progress made by the sectors in the framework of the harmonization of complementary pensions to abolish the difference of treatment based on the distinction between blue-collar workers and whitecollar workers in the field of complementary pensions.

Laurent De Surgeloose


How to extend the notice period in case of suspension of execution of the employment contract during the notice period

In case of suspension of execution of the employment contract during the notice period, notified by the employer, the notice period can be extended under given circumstances

This is only possible for suspension grounds provided by law, such as suspension due to sick leave (supported by medical certificate), statutory holidays, pregnancy leave, etc.

However, suspension grounds not provided by law, such as suspension due to the taking of working time reduction days ("arbeidsduurverminderingsdagen", "jours de reduction de temps de travail") or non-statutory holidays, will generally not suspend the course of the notice period.

This means that the notice period will not be extended due to such suspension grounds.

Having said all that, how will the notice period be extended in practice in case of a legal suspension ground during its course?

Last year, the French speaking Brussels labour tribunal had to assess this question.

The case concerned an employee who had been dismissed by the employer with a notice period to be performed. During the course of the notice period, the execution of the employment contract was suspended due to sick leave, supported by medical certificates, and due to the taking of statutory holidays. Subsequently, still during the notice period, the employer terminated the employment contract with immediate effect with payment of an indemnity in lieu of notice corresponding to the employee's gross remuneration for the remaining notice period.

The claiming employee argued that the employer erroneously extended the notice period. Hence, he claimed payment of an additional indemnity in lieu of notice, equal to the period between the immediate dismissal date and the date when the notice period should have expired after being extended correctly.

In its judgment, the labour tribunal clarified that the method to extend the notice period varies depending on the legal suspension ground.

In case of sick leave (supported by medical certificate) during the notice period, the latter will be suspended during the amount of calendar days of incapacity to work mentioned on the medical certificate.

Hence, the notice period will be extended with the amount of calendar days mentioned on the medical certificate, without taking into account the days of inactivity (i.e. days on which usually, no work is performed - e.g. Sundays, public holidays, etc.) during the suspension period.

However, the situation is different in case of suspension due to the taking of statutory holidays during the notice period.

The notice period will then only be suspended during the statutory holidays which were effectively taken by the employee.

Statutory holidays can only be taken on regular working days. This means that the notice period will only be extended with the amount of statutory holidays taken on regular working days.

Hence, contrary to suspension due to sick leave, in case of suspension due to the taking of statutory holidays the notice period will not be extended with the days of inactivity during the holiday period.

Therefore, in case of suspension of the notice period due to the taking of statutory holidays, the extension period can be shorter than the suspension period.

In case of a legal suspension of the execution of the employment contract during the notice period, notified by the employer, the notice period will be extended. However, the suspension period will not necessarily coincide with the period of extension of the notice period. It is also important to note that suspension grounds which are not defined by law will not lead to the extension of the notice period. Therefore, in light of the above, the employer should verify the grounds for suspension on a case-by-case basis in order to define the eventual date of expiration of the notice period.

Pierre Dion