Current situation: no justification of dismissal, although ...
Belgium has long been one of the (few) countries where an employer as a rule was not required to justify a dismissal. In principle an employer is free to terminate an employee for one reason or another, and need not communicate the reason(s).
There are some exceptions to that principle, e.g. in the case of dismissal for urgent cause, dismissal of employee representatives or other so-called protected employees (pregnant employees, time credit employees, employees with a political mandate, etc.). In those cases, there is a prohibition against dismissing an employee for certain reasons (e.g. pregnancy), and/or the employer must be able to establish other reasons (e.g. economic reasons for the dismissal of an employee representative).
Obligatory justification of dismissal as of 1 April 2014
As of 1 April the employee
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is entitled to receive information concerning the specific reasons for dismissal, and
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is entitled to compensation if the dismissal was manifestly unreasonable.
General scope
The CBA applies to all workers employed in the private sector on the basis of an employment contract.
The dismissal of employees with an employment contract in the public sector is therefore not covered. To the question of whether a dismissal in the public sector must be justified in accordance with the justification principle (as known in the public sector), the CBA offers no solution ...
The CBA does not apply to employees who are terminated:
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during the first six months of their employment;
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during a contract for temporary work;
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during a contract for student work;
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in view of SWT [system of unemployment with additional company payment];
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in view of a retirement pension;
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on account of final cessation of the activity;
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on account of the closure of the company;
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in the context of collective terminations; and
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in case of multiple terminations in the context of restructuring.
Also, the CBA is not applicable to employees who are subject to a special dismissal procedure by law (e.g. dismissal of an employee representative or prevention counsellor) or by virtue of a CBA (e.g. the dismissal procedure in the insurance sector or company-specific procedure).
Finally, an exception is also provided for workers who at the moment (still) are not covered by the new notice periods, but can only claim shortened notice periods on the basis of CBA No. 75:
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if the shortened notice periods are structural (construction workers who are employed on temporary or mobile construction sites), then the regulation of arbitrary termination (Article 63 of the Employment Contracts Act) remains applicable;
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if the shortened notice periods are temporary, then the regulation of arbitrary termination remains applicable until 31 December 2015. As of that time, they shall fall under the regulation of CBA No. 109 below.
Right to information concerning reasons for dismissal
An employer can at any time spontaneously communicate the reasons for the dismissal. It can do so verbally or, for instance, mention the reasons in the letter of dismissal.
If it does not do this, then as of 1 April 2014 the employee is entitled to ask the employer what the specific reasons were for the dismissal. The employee must make this request in time and by registered letter.
The employer must communicate the specific reasons which led to the dismissal in a registered letter within two months after receipt of the request.
If the employer has already spontaneously communicated the specific reasons in writing (e.g. in the letter of dismissal), and the employee could be aware of the specific reasons that led to his dismissal on the basis of the information provided by the employer, then the employer need not answer any request from the employee, although it can of course do so.
If the employer refuses to respond, or if it does not respond in accordance with the CBA, then it must pay a fine equal to two weeks' pay. We assume that this penalty is not subject to social security.
Both employment contracts of indefinite duration as well as fixed-term employment contracts are subject to the information requirement of the CBA. This means that an employee under a fixed-term employment contract that is terminated prematurely shall also have the right to be informed about the reasons for dismissal. This is not the case when an employer does not extend a fixed-term employment contract.
Compensation in the event of manifestly unreasonable dismissal
The employer can have various reasons for dismissing someone: there can be economic or structural reasons, or there can be a question of poor performance on the part of the employee. It thus has relative freedom in taking a decision to terminate, but that freedom is not absolute.
CBA No. 109 provides that the dismissal can not be manifestly unreasonable. According to the CBA, this refers to a dismissal that is based on reasons that are not related to the suitability or the conduct of the worker, or that is based on the necessities relating to the operation of the company, and where the decision would never have been made by an ordinary and reasonable employer.
If an employee finds that there is a question of a manifestly unreasonable dismissal, then he will have to summon the employer to appear before the Labour Court. This court will then conduct a limited review of whether or not the employer's decision to dismiss is manifestly unreasonable. If the Labour Court deems that the dismissal may indeed be unreasonable, then, on top of any compensation for irregular dismissal, it can award compensation for damages for at least three and up to seventeen weeks. According to the commentary of the CBA, the amount of the compensation depends on the degree of the manifest unreasonableness of the dismissal. How the Courts will apply this regulation in practice remains to be seen.
The CBA clarifies that the compensation cannot be combined with another protective compensation (e.g. pregnancy), but can be combined with the penalty equal to two weeks' pay, a compensation for irregular dismissal, non-competition compensation, goodwill compensation, and the additional compensation supplementing a social benefit, e.g. in the context of SWT. We assume that the compensation is not subject to social security.
Note that the concept of manifestly unreasonable dismissal is only reserved for employees hired for an indefinite period; employees with a fixed-term employment contract cannot claim it. They will still have to rely on the concept of abuse of rights in order to obtain any possible compensation for damages.
The burden of proof shall also be adjusted in case of dispute:
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If the employer has properly communicated the reasons for dismissal, there is a shared burden of proof. The employee will therefore have to demonstrate any manifest unreasonableness of the dismissal, and the employer will have to establish any additional reasons not communicated that demonstrate that the dismissal is reasonable.
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If the employer fails to communicate or improperly communicates the reasons for dismissal, then the burden of proof rests solely on the employer: it must demonstrate that the reasons for dismissal are not manifestly unreasonable.
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If the employee has not (properly) exercised his right to information, then the burden of proof rests solely on the employee: he must provide proof of elements that point to the manifest unreasonableness of his dismissal.
Conclusion
The right of dismissal has changed substantially since the new notice periods took effect. Now you will also need to (be able to) establish a content file for every dismissal as of 1 April 2014.
If you are thinking about dismissing an employee, then you now must pay attention to the following two requirements:
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prepare the dismissal file as thoroughly as possible.
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Communicate as well as possible the reasons for the dismissal in the written notification.
In this way you will always avoid a fixed fine of two weeks' pay and it will be easier to supply evidence for your decision to dismiss.