Be Aware Belgium May 2017

Be Aware Belgium Series

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Invoking the nullity of a termination by an employee within a reasonable period of time

Brussels Labour Court had to rule on the nullity of a termination and the claim of an indemnity in lieu of notice by an employee1.

These are the facts:

An Employee entered the service of a not-for-profit organization through an employment contract of indefinite duration.

By registered letter without a date (sent on 25 April 2012) the employer notified the termination of the employment contract with a notice period, the length of which would be decided by mutual agreement and which would start on 1 May 2012.

One year later the employer stated, by registered letter, that no agreement had been reached about the length of the notice period and informed the employee that the employment contract had ended on 30 April 2013.

The employee stated, by registered letter, that the employer had unlawfully terminated the employment contract on 30 April 2013 and he claimed an indemnity in lieu of notice.

The employee's claim was challenged by the employer, after which the former initiated proceedings before the Brussels Labour Tribunal.

The Brussels Labour Tribunal upheld the employee's claim and ordered the employer to pay an indemnity in lieu of notice.

The employer appealed the decision taken by the Brussels Labour Tribunal.

The Labour Court started by stating that the notification of the termination shall indicate the start date and end date of the notice period, under penalty of nullity.

Taking into account the above, according to the Labour Court the notification of the termination by the employer by registered letter of 25 April 2012 is (relatively) null.

However, since the employee continued to render services for the employer and did not invoke the nullity of the termination of 25 April 2012 within a reasonable period of time, according to the Labour Court he is deemed to have waived his right to invoke this.

With regard to the employee's claim to pay an indemnity in lieu of notice, the Labour Court considers that there is no discussion about the employer having terminated the employment contract unlawfully on 30 April 2013. According to the Labour Court, the employer's letter 1 year after the null termination shall be considered to be a new act of termination from the part of the employer, entitling the employee to an indemnity in lieu of notice.

In view of the above, the Labour Court orders the employer to pay an indemnity in lieu of notice to the employee.

After a reasonable period of time, the employee can no longer invoke a null termination if he continues to render services to the employer. However, the employee is entitled to an indemnity in lieu of notice if the employer commits a new unlawful act of termination afterwards.

Can it be agreed not to extend the dismissed employee's notice period in case the employment contract is suspended?

In case of dismissal, the legal principle is that the notice period to be completed is suspended during the legal suspension of the employment contract, for example in case of sickness leave or statutory annual leave. In that case, the notice period is extended by the duration of the suspension period.

Recently, the Belgian Supreme Court was called upon to determine if it is possible to derogate from this legal principle in agreement with the employee.

The case at stake concerned an employee who had been dismissed by his employer with a long notice period to complete.

Afterwards, a settlement agreement was concluded in which it was agreed that in case the employment contract was suspended during the notice period, the latter would still continue to run, thus derogating from the aforementioned legal principle of the proportionate extension of the notice period.

During the course of the notice period, the employee's employment contract was suspended several times due to the take up of statutory annual leave. However, in application of the aforementioned agreement, his notice period was not extended accordingly.

The employee challenged the validity of this agreement and initiated litigation proceedings against his former employer.

During the appeal procedure, the Liège Labour Court stated that such an agreement is valid, provided it was concluded after the formal notification of the dismissal to the employee. The Liège Labour Court based its decision on the fact that following such a formal notification, all risks of use of force by the employer upon the employee would have disappeared, thus making it possible for the employee to validly waive his aforementioned legal entitlement to the proportionate extension of the notice period.

The employee filed an appeal against this decision with the Supreme Court .

The Supreme Court overruled the aforementioned decision by the Liège Labour Court. In its judgment of 30 January 2017 (reference number S.15.0119.F/3), it stated that an employee can only waive the application of a mandatory legal provision after all resulting rights for the employee have become effective.

In the case at stake, this means that the employee could only waive his entitlement to the proportionate extension of the notice period after expiry of the suspension periods.

Indeed, according to the Supreme Court the employee's entitlement to the proportionate extension of the notice period does not become effective before the suspension period concerned.

According to the Belgian Supreme Court, it is possible to agree not to extend the notice period in case the contract is suspended during its course, but only after the expiry of the suspension period concerned.

Can the employer provide an express termination clause for default, automatically ending the employment contract without any indemnity in lieu of notice?

On 4 April 2017, the Brussels labour court ruled on the validity of an express termination clause in an employment contract. The judgement came in response to an employment contract for a definite term from 15 July 2013 through 31 December 2013, whereby the parties agreed to include an express termination clause in an annex to the contract. This clause stated that the employer could terminate the employment contract prematurely, without notice of default nor any form of indemnity in lieu of notice for the employee, among others, in case of gross negligence immediately and definitively making any further cooperation impossible.

The employer terminated the employment contract on 9 September 2013, through a notice period of 5 working days starting on 10 September 2013, in accordance with the express termination clause.

The employee challenged the termination of the employment contract and the validity of the express termination clause, as this clause bypassed the rules on termination with immediate effect. On 12 September 2014, the employee claimed an indemnity in lieu of notice equal to 91 days.

At the first instance, the Brussels labour tribunal ruled that the express termination clause was valid, which immediately ended the employment contract on 9 September 2013, causing the employee's claim to reach its limitation period and to be inadmissible.

The employee subsequently lodged an appeal before the Brussels labour court. Firstly, the labour court ruled that the employee was in service until 16 September 2013, taking into account the notice period of 5 working days, and that the employee's claim of 12 September 2013 was brought before the court in time.

Furthermore, the labour court stated that an express termination clause shall not cause any prejudice to the power of appreciation of the judge. Given the fact that the express termination clause ends the employment contract immediately without the possibility for the judge to assess the default, the labour court ruled that the termination based on this clause violates articles 35 and 40 of the Act of 3 July 1978 on employment contracts. Hence, the employer must pay an indemnity in lieu of notice in compliance with article 40 of the Act on employment contracts, equal to the remuneration of the employee due until the end of the term determined in the employment contract.

An express termination clause for default automatically ending the employment contract and thus causing prejudice to the appreciation power of the judge, violates article 35 of the Act on employment contracts and is therefore null.


1 Brussels Labour Court 10 February 2017, AR 2015 AB/784