Social elections 2016 and protection against dismissal

Following the recent social elections of May 2016, works councils (WC) and committees for prevention and protection at work (CPPW) were installed or renewed in many companies.
The staff representatives of these bodies and the non-elected candidates shall be protected against dismissal during a specific period.

Who is entitled to protection against dismissal?

Are protected against dismissal:

• on the one hand, the elected (full and alternate) workers-staff representatives to the WC and/or the CPPW ;
• and, on the other hand, the non-elected workers-candidate staff represtentatives to the WC and/or the CPPW.

Authorised modes of termination

During the period of protection, the employer cannot dismiss a staff representative nor a candidate who has not been elected in the WC or the CPPW (with or without notice, with or without compensation), except:

• for misconduct previously accepted by the labour court privided that a specific procedure is followed;
• or for economic or technical reasons previously recognised by the competent joint body (in principle, the joint committee) provided that a specific procedure is followed.

In addition to the dismissal for misconduct and the dismissal for economic or technical reasons, the employment contract of a staff representative or a non-elected candidate in the WC and/or the CPPW can also be terminated as follows:

• upon reaching the end date;
• upon the completion of the work for which the employment contract was concluded;
• upon the dismissal of the protected worker;
• upon the decease of the protected worder;
• in the event of force majeure (the effects of which are final);
• upon agreement between the employer and the employee protected.      

Duration of the period of protection

Start of the period of protection against dismissal

The period of protection against dismissal begins on the thirtieth day prior to the posting of the notice announcing the date of the elections (between 10 and 23 January 2016), regardless of whether the candidate has been elected or not and regardless of the category protected.

Termination of the protection against dismissal

For the full or alternate staff representatives

The period of protection against dismissal enjoyed by the (full or alternate) staff representative to the WC and/or the CPPW shall end on the date of appointment of the candidates elected to the WC and/or the CPPW during the following elections, provided that the staff representative is not represented.

Non-elected candidates on their first unsuccessful candidacy

The period of protection against dimissal enjoyed by non-elected candidates on the first candidacy for the WC and/or the CPPW shall end on the date of appointment of the candidates elected to the WC and/or the CPPW.

For the non-elected candidates on their second unsuccessful candidacy

The period of protection against dismissal enjoyed by candidates on their second unsuccessful candidacy for the works council and/or the committee for prevention and protection at work shall end, in principle, 2 years after the posting of the results of the social elections.

Important!The protection to which (candidate) staff representatives are entitled shall end at such time as they reach the age of 65, except if it is standard practice within the company to maintain in service the category of worker to which he belongs.

Penalties in the event of irregular termination 

If the employer irregularly dismisses a worker-staff representative or a non-elected candidate in the WC and/or the CPPW in the course of the period of protection, then he shall be liable to pay a protective award to that worker.

Two situations may occur.

When the protected worker has requested his reintegration (within the required form or term), he is entitled to a protective award consisting of two parts in the event of refusal by the employer. These parts are:

• a fixed part: 2, 3 or 4 years' wages depending on the length of service within the company: less than 10 years, 10 to less than 20 years or 20 years or more;
• a variable part equal to the wages for the remaining period until the end of the term of office of the members representing the staff and to whose election the worker was a candidate.

If the worker on the other hand has not requested reintegration, he is entitled to a compensation. The amount thereof is limited to the fixed part of the protective award (2, 3 or 4 years' wages depending on his length of service).

Follow our blog on the social elections.

Main source: act of 19 March 1991 on a special system of dismissal for staff representatives to the works council and the committee for prevention and protection at work, as well as for candidate staff representatives.

Author: Catherine Mairy

08/06/2016