For public sector employers: regulation on reasons for dismissal and manifestly unfair dismissal
On February 29th, the parliament approved the draft act on the justification of dismissal and manifestly unfair dismissal of contractual employees in the public sector.
In implementation of the Unified Status Act, the collective bargaining agreement 109 has provided since 2014. rules on justification for dismissal and manifestly unfair dismissal for the private sector The Unified Status Act also states that a similar regulation should be developed for the public sector (i.e., for employers not covered by the scope of the collective bargaining Act), which the draft act therefore now accommodates. In anticipation of this statutory regulation for the public sector, the courts did already apply by analogy in practice the principles of collective bargaining agreement 109.
As a result, the draft act provides for an arrangement similar to the one in the private sector (cba 109), taking into account some specific features of the public sector, such as the right to be heard and the justification obligation.
1. Right to be heard prior to dismissal decision
The employee has the right to be heard prior to his dismissal. The employer is obliged to communicate the facts and reasons for the decision to the employee prior to the meeting so that the latter can prepare him/herself for the meeting. The draft act does not provide an exact timing for the communication of the reasons, but it does state that the employee must have sufficient time to prepare for the meeting or to justify his comments in writing. Based on the meeting, the employer then decides whether or not to proceed with dismissal. If the employer fails to comply with this rule, he is liable to pay a compensation equal to 2 weeks' salary.
2. Mandatory a priori notification of concrete reasons for dismissal
If, after the meeting, the employer decides to proceed with dismissal, he must notify the employee in writing, along with the concrete reasons for dismissal. The notification shall contain the elements that allow the employee to know the concrete reasons that led to his dismissal.
This is therefore different from the private sector, where the obligation to communicate the reasons only applies when the employee requests for it.
If the employer does not mention the concrete reasons, a compensation equal to 2 weeks' salary is also due. However, the notification of dismissal remains valid in such case.
3. Manifestly unfair dismissal
The principles of manifestly unfair dismissal of cba 109 are adopted in the draft act (definition, scope, etc.). Thus, in the case of manifestly unfair dismissal, the public sector employer is also liable to pay damages equal to 3 to 17 weeks. The damages are cumulative with the compensation of 2 weeks of salary in case of disregard of the right to be heard or the notification. Otherwise, the same cumulation rules apply as in cba 109.
4. Burden of proof
In principle, the employee must prove that the dismissal was manifestly unfair, unless the employer failed to communicate the concrete reasons that led to the dismissal. In that case, the employer will have to prove that the dismissal was not manifestly unfair.
5. Entry into force
The new regulation enters into force on the first day of the second month in which it is published in the Belgian Official Gazette.
TO DO: Employers in the public sector should evaluate and, if necessary, revise their termination procedures so that:
- the employee is invited to an interview in a timely manner and in writing prior to the dismissal decision, adequately stating the facts and reasons for the potential dismissal decision; and
- the concrete reasons for dismissal along with the dismissal decision are notified to the employee in writing.
