A recent legislative proposal sets out the future rules regarding the obligation to motivate the dismissal of contractual workers in the public sector and offer protection against manifestly unreasonable dismissal. The proposal is heavily inspired by the rules for the private sector, but there are also significant differences.
Since 2014, workers in the private sector have been awarded the right to request a written motivation for their dismissal by the employer. This was introduced by the national collective bargaining agreement no. 109. Such CBAs do not apply to the vast majority of the public sector, which means that there are no equivalent procedural guarantees for contractual workers in the public sector. This legal vacuum led to10 years of discussions in Belgian case law. The Constitutional Court deemed the lack of rules in the public sector to violate the constitutional principle of equality and advised the Belgian labour courts (while assessing cases on a dismissal of a contractual worker in the public sector) to be guided by the rules of CBA no. 109, pending a legal framework for the public sector. Therefore, Belgian labour courts started to apply the rules of CBA no. 109 to dismissal cases in the public sector by analogy, but there were still differences between the various labour courts.
After ten years of legal uncertainty, the federal government has now introduced a legislative proposal to the federal parliament (Chamber of Representatives). Below we discuss thekey points of this proposal.
- A first important difference with CBA no. 109 for the private sector is the fact that the current legislative proposal obliges the public employer tomotivatethe dismissalon its initiative. In the private sector, the employer only needs to provide a written motivation upon the formal request of the employee.
- The legislative proposal creates a legal basis for the public employer'sobligation to hear the contractual workerbefore deciding to dismiss, in line with the previous judgements by the Constitutional Court. If the public employer does not hear the worker, he will need to pay a compensation equal to two weeks' salary. However, the dismissal itself will remain valid. The same scope of application applies as for the motivation obligation.
- In line with the applicable rules in the private sector (CBA
no. 109), the dismissal of a contractual worker by a public
employer cannot be based on manifestly unreasonable grounds.
Amanifestly unreasonable dismissalis a dismissal
of a contractual worker (with an employment contract for an
indefinite period of time) that:
- is not based on reasons related to the worker's suitability or conduct, or
- is not based on necessities concerning the operation of the undertaking, institution or service,
- and which would never be decided upon by a normal and reasonable employer.
In case the public employer has motivated the dismissal, it will be up to the worker to prove that the dismissal is manifestly unreasonable. If the employer did not provide written motivation for the dismissal upon his initiative, the burden of proof will be reversed. A manifestly unreasonable dismissal is sanctioned by acompensation of 3 to 17 weeks' salary. This compensation cannot be accumulated with other compensation to be claimed upon dismissal.
The act will apply to all contractual workers in the public sector and their employers if the employer does not fall under the scope of the CBA-Act (in that case CBA no. 109 already applies). TheAct does not applyto dismissals in the following cases:
- For a worker with less than 6 months seniority;
- For a temporary agency worker;
- For a student worker;
- If the termination results from reaching the retirement age;
- For a dismissal for serious cause (thus, the question regarding the compatibility of the hearing requirement and the double three-day deadline of Article 35 Employment Contracts Act is not resolved by this legal proposal);
- In case there is a specific dismissal procedure imposed by law.
The legislative proposal must still be voted by the competent committees and the plenary session of the Federal Parliament. If approved, the provisions willenter into forceon the first day of the second month following its publication in the Belgian Official Gazette.
Source: Legislative proposal55K3754/001
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