This edition discusses employer's ability to dismiss an employee for urgent cause if he refuses to be transferred to another city. It also includes an article on whether a sales manager can be considered as a sales representative in the sense of the law.
A company was led to relocate part of its business
from Brussels to Liège for economic and financial
reasons. On this occasion, various collective
bargaining agreements were signed at the company
level with the unions, one of which being a collective
bargaining agreement regarding the relocation of the
company's business. Accompanying measures were
also provided, along with the creation of an
employment support cell in order to determine,
depending on the situation, to what extent the
employee's personal situation prevented him from
continuing the professional relationship.
One employee refused to be transferred. He had been
employed in Brussels for over 10 years. Even though
this employee's employment contract stated that he
would be employed in Brussels, it also stated that the
employee may be employed in the various
departments of the employer's headquarters and
offices at a later stage.
After the employee was heard by the employment
support cell which had been created, the latter was of
the opinion that, given the employee's situation, the
employee was bound to perform the job that was
offered to him. As such, the employer informed the
employee of his new posting. Since the employee kept
refusing, the employer told him that if he did not come
to work, he would be considered to have quit work.
After several formal notices had been delivered to the
employee and after the latter once again had refused to
be transferred, in a board meeting which he had been
invited to, the employer decided to dismiss this
employee for urgent cause, justifying his decision by
the employee's characterised insubordination, the noncompliance
with the collective bargaining agreements
at the company level and the non-compliance with his
The employee brought legal action before the Court in
order to challenge this decision. As the first judge
dismissed the case, he appealed to the Brussels Labour
The employee stated in particular that he was not
bound by the collective bargaining agreements signed
at the company level with the unions which provided
the transfer of the business from Brussels to Liège.
The Court dismissed that argument. Based on the
mandate theory, employees who are affiliated with a
union that signed a collective bargaining agreement,
are bound by the collective bargaining agreement
signed by their union. As a matter of fact, the
employee was affiliated with one of the signing
unions. According to the Court, the employer's
decision to dismiss the employee for urgent cause,
following his persistent refusal to be transferred, is justified given the circumstances (the relocation of the
business from Brussels to Liège complied with "a
legitimate company goal in the best interest of the
company and all its employees", the accompanying
measures taken by the employer provided "not only
accompanying measures, but also the option to go
through a trial period after which the employee would be
dismissed with a reasonable notice period if the trial
period is unsuccessful").
The Court also considered that, even if those collective
bargaining agreements at the company level were not
binding for the employee, the employee's refusal to go
work in Liège constitutes an act of insubordination,
taking into account the clause provided in his
employment contract, as the employee had accepted in
his employment contract that he may be employed in the
various departments of the employer's headquarters and
According to the employee, this clause is void based on
article 25 of the Act of 3 July 1978 on employment
contracts. This article 25 stipulates that "Any clause
through which the employer reserves the right to
unilaterally change the contract conditions is void".
According to the Court, "article 25 is not intended to
have the company blow over by laying down all
contractual elements between each employee and the
employer". The Court also invoked the relevant case-law
of the Supreme Court, according to which article 25 only
applies to essential amendments to the employment
contract and not to amendments to the ancillary terms
which the parties agreed upon.
As a matter of fact, according to the Court, the
employee's place of work, in the case at hand, is not an
essential term of the employee's employment contract,
since the parties to the employment contract wanted to
make the place of work a secondary element, if we look
at the actual wording of their employment contract. By
refusing to be transferred to Liège, the employee
committed a breach of contract and according to the
Court, this qualifies as an urgent cause.
In the case that had been submitted, the Brussels
Labour Court considered that the employee's refusal
to go work in Liège definitely qualified as an urgent
Recently, the Ghent Labour Court (section of Bruges)
was asked to determine whether a sales manager can be
considered as a sales representative in the sense of the
law, thus being entitled to a clientele indemnity upon his
A clientele indemnity is a specific, legally defined
additional indemnity for dismissed sales representatives
with at least 1 year of seniority, intended to compensate
the loss of clients following the dismissal.
When legally due, a clientele indemnity will at least
amount to 3 months' remuneration, to be increased
gradually according to the sales representative's seniority
The underlying facts of the aforementioned judgment can
be summarized as follows.
In 2011, an employee entered into the service of a
company, in the position of "sales manager". The sales
manager formed part of the sales team and was
responsible for the commercial relationships with the
employer's existing clients and for prospecting new
clients. His job description included, among others,
maintaining contacts with clients, visiting trade fairs,
setting up price offers, contributing to the development of
new products, etc.
In 2013, the employer terminated the employment
contract with immediate effect by payment of an
indemnity in lieu of notice equal to 3 months'
Afterwards, discussions arose between the employer and
the sales manager regarding the payment of a clientele
indemnity. Eventually, the sales manager brought the
case before the Courtrai Labour Tribunal.
The Labour Tribunal determined in the first instance that
the sales manager did not demonstrate that his main
activity would be taking on the position of a sales
representative. Hence, his claim for payment of a
clientele indemnity was denied.
The sales manager appealed against this decision before
the Ghent Labour Court, arguing, among others, that he
was paid as a sales representative (in fixed and variable
remuneration, the latter in the form of a revenue-based
target bonus), that there were no other salespersons active
in his designated area of activity, that he was mainly on
the road prospecting new clients, that he participated in
trade fairs and sales meetings, that he was able to
negotiate sales prices and sale and purchasing terms.
To the contrary, the employer stated that the employee's
main activities did not consist of prospecting and visiting clients, in view of negotiating and concluding business.
Hence, according to the employer he could not be
considered as a sales representative as defined by law.
The Ghent Labour Court determined that maintaining
regular contacts with existing and potential clients is one
aspect of sales representation, but there needs to be more
than that to be able to consider an employee as a sales
representative as defined by law.
Indeed, these contacts should primarily occur on-site at
existing or potential clients, not via e-mail or telephone.
Further, these contacts must be aimed at negotiating and
concluding business deals. Moreover, visiting clients onsite
must be one of the employee's primary tasks.
The Labour Court reckoned the employee's main activity
did not consist of visiting clients. Further, the employee's
client visits were not aimed at negotiating or concluding
business deals, but were instead more focused on
marketing activities. The Labour Court corroborated its
decision by stating that the employee did not submit any
sales orders from clients, nor did he prove that clients
placed orders due to his intervention. Further, the
employee did not receive any commission payments,
which the Labour Court considered to be an important
salary component for sales representatives.
Hence, the Labour Court confirmed the judgment of the
Courtrai Labour Tribunal.
An employee can only be considered as a sales
representative if he can demonstrate that visiting
clients is one of his main activities, and that these
client visits are aimed at negotiating and concluding
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