Termination of employment contracts in Bélgica

Under Belgian law, “employment at will” is not a general principle. Generally speaking, an employer should be able to “motivate” the dismissal. According to the CBA 109, every dismissal must be motivated, except the dismissals during the 6 first months of service. For dismissals occuring after that time, the employer must be able to justify the dismissal, either by the behaviour or conduct of the employee or by the needs of the undertaking.

Should a dismissal not be sufficiently motivated, it can be deemed “manifestly unreasonable”. In such a case, the employer can be condemned to the payment of an indemnity ranging from 3 to 17 weeks of remuneration, on top of the regular termination indemnities.

A lot of different types of dismissal protection exist under Belgian law. These can be divided in two categories:

• Protections linked to the specific position of the employee within the company: e.g. the internal prevention advisor, members of the works council or the committee for health and safety, unelected candidates in the social elections, trade union representatives.
  In this case, the employee can only be dismissed for very specific reasons. The dismissal protection entails a mandatory procedure to validate the reason called upon prior to dismissal.
• Protections linked to the “vulnerable” personal situation of the employee: e.g. employees taking specific types of leave (e.g. maternity leave, adoption leave, time credit, political leave), employees who have filed specific complaints (e.g. for harassement, discrimination,...), employees who have reported a violation as “whistleblower”, pregnant employees, employees undergoing a fertility treatment.
  This protection entails the prohibition for the employer to dismiss for a reason related to the vulnerable situation of the employee.

Payment of a severance pay is the general remedy.

The reinstatement is the exception. It applies if a member of the works council or the committee for health and safety has been dismissed irregularly. Even then, the reinstatement can not be imposed: the employer can refuse the reintegration, but this will result in the obligation to pay an extra (high) protection indemnity.

If the employer decides to terminate the contract with immediate effect, he must pay to the employee an indemnity in lieu of notice. It equals the remuneration of the employee for the notice period that should have been respected.

The notice period that should have been respected is calculated depending on the length of service.

The remuneration to be taken into account is not only the salary paid on a monthly basis but also all advantages and benefits in kind acquired by virtue of the contract (e.g. bonuses, private use of a car, contributions paid by the employer to a group insurance scheme, the double holiday pay, etc.).

There is no cap to the amount the employee may receive.

A specific timeframe must be respected in case of termination for serious cause. In case of a serious cause (e.g. theft by the employee, fraud, violence at the workplace), the employment agreement can be terminated without notice and without indemnity in lieu thereof. The employer must comply with very strict formal and timeframe requirements. The dismissal must be notified within 3 working days following the knowledge of the serious cause. Subsequently, the reasons for dismissal for serious cause must be communicated by registered letter within 3 working days following the termination for serious cause.

In the case of a dismissal with notice period, specific formalities must be fulfilled. The notice has to be given in writing, by registered mail or served by bailiff, but the latter is very uncommon. If an employee wants to give notice, this can also be done by handing over a resignation letter to the employer, and asking the employer to sign a copy for receipt.

A unilateral termination that is notified orally, by e-mail or by facsimile can not be a valid termination with a notice period. It will be considered as a termination with immediate effect, entitling the other party to an indemnity in lieu of notice.

Anyone who is properly mandated by the employer can sign a termination letter on behalf of the employer (based on a proxy, power of attorney, articles of association).

If a person who was not properly mandated, signed a termination letter, this will still be considered as a dismissal.

In case of dismissal for serious cause by a person who was not competent to do so, the employer can confirm the dismissal, but this has to be done within the very short timeframe applicable in case of dismissal for serious cause.

There is no general obligation to meet the employee before a termination may be issued.

From an HR perspective, it is mostly highly recommended to meet the employee when announcing the termination.

There is no general obligation to involve a statutory body before a valid termination may be issued. Exceptions are rare, but very important. The most relevant exception is the procedure for the dismissal of employee representatives (and unelected candidate representatives) for serious cause. This procedure implies the obligation to file the legal procedure with the labour court within three working days as of the moment the employer gained knowledge of the serious cause.

There is no general obligation to involve an employee representative body before a valid termination may be issued. Exceptions are rare, but very important, for example:

• The committee for health and safety must be consulted before an internal prevention advisor can be dismissed;
• The joint committee (employer’s and employee representation at sector level) must be consulted before an employee representative (or unelected candidate representative) can be dismissed for economical or technical reasons;
• The works council, or if there isn’t one, the trade union representation, must be informed and consulted before any collective dismissal and/or closure of an undertaking can take place.

The timeframe depends on the specific situation.