Dismissal after the obligation to motivate - The “unified status” blue-collar workers / white-collar workers

It was with some suspicion and anxiety that the employers’ community awaited for the way the worker’s right to know the motives of the termination of his employment contract – as laid down in the agreement of 5 July 2013 relating to the “unified status” blue-collar workers/white-collar workers – would be filled in. 

The CLA nr 109, entered into on 12 February 2014 within the framework of the National Labour Council, brought the answers. 

Was the suspicion and the anxiety justified? 

Some critical comments concerning the “obligation to motivate”, as laid down in CLA nr 109.

Apart of defining in more detail the right of the worker to know the specific motives, which led to the dismissal (chapter 3), the CLA nr 109 introduces the notion of the “clearly unreasonable dismissal” (chapter 4). 

The abusive dismissal, as referred to in the former article 63 of the law of 3 July 1978 relating to employment contracts, remains applicable to the categories of workers, for whom and as long as the shortened notice periods apply.

1. The scope of CLA nr 109

CLA nr 109 does not apply in case of a dismissal in the course of the first six months of employment. 

For the calculation of the six months one must take into consideration the preceding periods of employment as a temporary worker as well as the periods of employment on the basis of an employment contract for a defined period of time in the same function, provided the interruption between the periods of employment did not exceed 7 days. In such case, the periods of interruption of 7 days or less are assimilated to periods of employment.

CLA nr 109 does not apply either to the termination of an employment contract for temporary work or of an employment contract for student work.

That exclusion also applies in the case of termination of an employment contract as from the first day of the month following the month during which the worker reached the legal pension age, as well as in the case of a dismissal in view of applying the system of unemployment with a company supplement (the former conventional prepension).

In the case of a closure of an enterprise, as referred to in the law of 26 June 2002, CLA nr 109 does not apply, neither does it in the case of a termination of an employment contract as a result of a complete discontinuation of the activity; the latter case relates in particular to companies employing on average less than 20 workers, because the above mentioned law on closure of enterprises does not apply to these companies.

Also in the case of termination of employment contracts in the framework of a collective dismissal, CLA nr 109 does not apply. That exclusion is extended to the cases of “multiple dismissals resulting from a restructuring”, as defined at the level of the sector; this extension relates mainly to the cases where special rules have been elaborated at sector level, which apply to companies employing on average less than 20 workers, when they implement a multiple dismissal; the regulations on collective dismissal do, indeed, not apply to these companies.

Finally, CLA nr 109 does not apply to dismissals, which are subject to special procedures provided for by law or by collective labour agreements. 

As an outstanding example, reference can be made to the termination of the employment contract of a (candidate) representative of the personnel at the works’ council or at the committee for prevention and protection at work and to the termination of the employment contract of a trade union delegate. 

The exception also includes also these instances where special procedures have been provided for by collective agreements, entered into be it at company level or at sector level. Consequently, the insurance sector does not fall within the scope of CLA nr 109.

2. The right to know the specific motives which led to the dismissal

The employer does not have to state the motives of dismissal at his own initiative.

The employer does not have the obligation to communicate the reasons of his decision to the worker at his own initiative at the time of termination of the employment contract of the worker. 

Obviously, nothing withholds him from doing so, but if he does not, no sanction applies.

It results form the drafting of the CLA that the industrial relations partners did not have the intention to take account of the motive of termination, mentioned on the C4-form, as “the specific motives which led to the dismissal”. 

Consequently, in principle, the usual and vague reference to “reorganization” and “restructuring” on the C4-form could be maintained. Nevertheless, in order not to loose his credibility, it seems appropriate that the motive, withheld by the employer on the C4-form, concurs closely with the “specific motives”, the employer may have to communicate later on, as the case may be at the request of the worker. 

Remains the question which attitude the National Unemployment Services will take with respect to the motive on the C4-form, which concurs closely with the “specific motives which led to the dismissal”.

If the worker wants to know the specific motives, which led to the dismissal, he must ask his (former) employer to communicate these motives to him, and this by registered letter sent within two months following the dismissal (six months following notification of a notice of termination, but in any event not later than two months following effective termination of the employment contract). Except if the employer did already communicate these motives at his own initiative, the employer must comply with the request within two months; if not, he is liable for payment to the worker of a “lump sum civil penalty” equivalent to two weeks salary.

It is up to the courts to define in more detail the notion of “specific motives”. In any event, the employer will not be considered to have complied with his obligation if he replies to the request of the worker with a merely vague description of the motives. Furthermore, it is most appropriate for the employer to see to it that the submitted motives comply with reality. The failure to do so might even qualify as forgery. 

In addition, since the CLA nr 109 has been rendered compulsory by royal decree, the failure to comply with the obligation to state the specific motives may be subject to criminal sanctions.

The new notion “lump sum civil penalty” is a rare example of inventiveness of the industrial relations partners. In any event, they have asked the government to take the measures, as necessary, in order not to have qualified this penalty as a salary for social security purposes and within the framework of the regulations on unemployment allowances. The qualification for tax purposes will, beyond any doubt, end up along the same lines.

These rules do not apply in the case of a termination for cause. Neither do they apply to the workers, for whom and as long as shortened notices of termination apply.

3. The clearly unreasonable dismissal

A clearly unreasonable dismissal is defined as a dismissal, which “… is based on reasons which are not related to the capabilities or the behaviour of the worker or which are not based on the operational necessities of the company … … and which would never have been decided upon by a normal and reasonable employer.”

By adding the test of a “normal and reasonable employer”, the industrial relations partners wanted to emphasize that the verification is a marginal one, which can not include a judgement on the appropriateness of the employer’s policies. Consequently, the employer remains free, to a large extent, to decide on what is reasonable and the different policy alternatives, which a normal and reasonable employer might consider, must be respected. Also, the circumstances of the dismissal are not relevant.

Consequently, a very important task is given to the judiciary to give contents in practice to the notion of “clearly unreasonable dismissal”.

The burden of proof is the worker’s or the employer’s depending on the circumstances, in particular on whether or not the worker has filed a request to be informed of the motives of the dismissal:

if the employee did not file such a request, he must submit the evidence that the dismissal was clearly unreasonable;

if the worker did file such a request, then the employer has the burden of proof that the dismissal is not clearly unreasonable if he did not reply to the worker’s request or if the motives which he submits in order to demonstrate that the dismissal was not clearly unreasonable, are different from the motives which he communicated earlier in reply to the worker’s request;

if the worker filed a request and if the employer replied to the request and maintains the motives as per the reply to the request, the claiming party has the burden of proof of his claims.

If the dismissal is held to be clearly unreasonable, the worker is entitled to a compensation, equivalent to at least 3 weeks salary and maximum 17 weeks salary. The amount of the compensation depends on the degree of unreasonableness. So, again a decisive role for the employment tribunals and employment courts.

This compensation can not be accumulated with other indemnities due by the employer as a result of the termination of the employment contract, with the exception of the severance pay, the non-compete compensation, the goodwill indemnity and the indemnities which are paid as a supplement to social allowances. The indemnities which are aimed at here are mainly the lump sum protection indemnities, which are due by the employer, who fails to demonstrate that the termination of an employment contract is based on a sufficient reason or on a reason which is not related to certain circumstances, such as, by way of example, pregnancy, the fact of having file a harassment claim, etc.

These stipulations do not apply to the workers, to whom and as long as shortened notices of termination apply.

4. The abusive dismissal

In line with the former article 63 of the law of 3 July 1978 relating to employment contracts, the CLA nr 109 defines abusive dismissal as “… the dismissal of a worker who has been hired for an indefinite period of time, based on reasons which are not related to the capabilities or the behaviour of the worker or which are not based on the operational necessities of the company …”.

In certain sectors, short notices of termination, as determined by royal decree, applied to the blue-collar workers before the law of 26 December 2013 came into force (in practice, 11 sectors are concerned). Pursuant to article 70§2 of the law of 26 December 2013, shortened notices of termination apply to these sectors up to 31 December 2015 at the latest. As long as these shortened notices of termination apply, the rules on abusive termination, as referred to in the former article 63 of the law of 3 July 1978 relating to employment contracts and as taken over by CLA nr 109, remain applicable to the blue-collar workers of these sectors. Thereafter, CLA nr 109, as referred to above, will apply.

The system of abusive termination also remains applicable to the blue-collar workers, who do not have a fixed place of work and who perform activities, as listed in article 70§4 of the law of 26 December 2013, on temporary and mobile sites. The listed activities are grosso modo  activities of the construction industry (the shortened notices of termination, as determined in article 70§2, remain applicable to these workers).

If the worker is contesting the motives of the dismissal, the employer must submit the evidence that the dismissal is not abusive, that is, to put it otherwise, that the dismissal is related to the capabilities or the behaviour of the worker or that the dismissal is based on operational necessities of the company. 

If he fails to do so, he is liable for payment of a lump sum indemnity equivalent to six months salary.

5. Conclusion

As mentioned above, pending the CLA nr 109, there was some anxiety concerning the way the “obligation to motivate” would be defined. 

After all, it did not turn out to be that bad, particularly when considering the possible financial implications. 

In the surrounding countries the rules are considerably more strict and the possible financial implications are much more important. Belgium does not deserve any longer the reputation of being an “expensive” country when it comes to terminating employment contracts. 

Obviously, this does not prevent the CLA nr 109 from having potentially a major impact on HR-policies with respect to the termination of employment contracts.