In the wake of the Covid-19 pandemic, many companies are currently forced to make short-term cost savings. This may also affect business abroad, for which often only one or two employees are working locally. Meanwhile similar legal standards apply in most industrialized countries if an employment relationship shall be terminated; however, in every jurisdiction some specifics still need to be considered. In order to avoid unnecessary costs, an initial overview for a step by step planning is often essential. The following ten aspects may be a first general guideline for the termination of an employment contract, in particular regarding its timing. Our legal experts provide you with a first landing platform for the particularities of their country, being at your service for additional specific advice for your individual case hereafter.
Is “employment at will” the general principle in the respective country or do you usually need grounds for a termination of an employment contract?
No, it is not. You need a ground for termination of an employment contract, and this ground shall be mentioned and sufficiently detailed in the notification of termination.
If there is a general concept of “dismissal protection”, is it limited to certain requirements (e.g. size of company/workplace, length of service)?
Two kinds of dismissal protection exist:
The first one is related to the status of “protected employees” granted to staff representatives, but also former staff representatives (during 6 or 12 months after the end of representation) and non-elected candidates to the company elections (during 6 months after the election). This protection is not an absolute protection but means that an employer cannot dismiss such employees without the prior consent of the Labour Inspection.
The second kind of dismissal protection is related to the protection against discrimination: it covers the persons on maternity leave or paternity leave (and during the 10 weeks following the return to work), which contracts cannot be terminated for any reason.
Finally, in some cases, dismissal is allowed only in the case of serious misconduct of the employee or complete impossibility to maintain the contract: it concerns the pregnant woman, persons who are on sick leave following an accident at work or for an occupational disease.
If a termination is deemed to be invalid, is “reinstatement (including backpay)” or “payment of damages and/or a severance payment” the general remedy?
If a termination is deemed to be “without due cause” (insufficiently grounded or demonstrated in court), reinstatement will never be granted and only damages will be awarded.
If a termination is null and void, then reinstatement (including backpay) will be granted every time it is requested by the employee, who can choose to receive only damages (with then a minimum of 6 months’ salary).
Void terminations cases are listed by the law. It concerns the cases where there is a protection against dismissal listed above, but also other situations: if the dismissal is seen as being discriminatory (for example, related to the health of the employee) or a retaliation measure for filing a complaint for harassment, or if the legal framework on collective redundancy plans have not been respected.
If “payment of damages” is the general concept, what is the basis of its calculation/the maximum amount the employee may receive?
A “damages scale” is set by the law, with a minimum and a maximum depending on seniority of the employee upon termination and size of the company.
May the right to terminate in some cases forfeit, (e.g. right to terminate forthwith) if not executed timely? If so, what is the respective timeframe?
Disciplinary measures in general shall be executed in a specific timeframe: the employer shall launch the process (which means invite the employee to an interview) within 2 months of discovery of the misconduct. Then, they shall notify the dismissal within 1 month after this interview.
There is no specific deadline if the termination occurs for serious misconduct. However, if the employee was allowed to remain at work during a few weeks before being terminated, then judges may consider that it could not be seen as a serious misconduct but only due cause allowing the employee to receive termination indemnity and notice period salary.
Has a termination to be delivered in writing or may the delivery of an oral/email/facsimile termination without an original signature be sufficient as well?
Termination shall be notified by registered letter only (a copy of which can be handed over to the employee, but this should not prevent from sending the registered letter prior this delivery). If the termination is given verbally, it is automatically considered as “without cause”.
May a termination be successfully rejected due to the lack of a formal proxy of the managing director or may internal authorization generally be sufficient?
Case law has been moving back and forth on this topic: the best practice is to always have the legal representative or formal proxy holder signing the letter.
Is the are any general formal procedure with regard to the employee (e.g. obligatory meeting with the employee) before a valid termination may be issued?
Yes, the employee shall be invited to a preliminary interview where the reasons why termination of employment is considered are exposed to him/her, and where they can make observations/comments.
Usually, the procedure implies that the invitation is sent to the employee at least 5 working days before the interview, mentions that they can be assisted during the interview. Then, the employer shall wait for 2 working days of reflection after this meeting before sending the termination letter.
However, in some cases (mostly economic redundancies), the timeline is different.
Is there any statutory body that needs to be dealt with before a valid termination may be issued? If so, what is the usual timeframe?
Such intervention is required only for staff representatives or former staff representatives, for which the employer cannot issue a termination before receiving authorization from the Labour Inspection.
Is there -usually- an employee representative body that needs to be dealt with before a termination may be issued? If so, what is the usual timeframe?
The Staff Council shall be informed and consulted when an employer intends to terminate a staff representative or former staff representative’s contract . This consultation does not mean that the employer shall get the approval from the staff representatives, but they need to give their opinion, after the preliminary interview has taken place and before the Labour Inspection’s authorization is requested.
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