Statement of reasons for dismissal: CBA No 109 has been concluded!

Collective bargaining agreement (CBA) No 109 on the statement of reasons for dismissal was concluded between the social partners on 12 February 2014. This agreement provides for the right of the worker (regardless of status) to know the reasons for dismissal and to obtain compensation in case of clearly unreasonable dismissal. These new rules on the statement of reasons for dismissal apply to any dismissal notice served on or after 1 April 2014.

Scope

The new provisions on the statement of reasons for dismissal apply to workers employed under an employment contract and to employers who employ them.

However, the following categories of workers are excluded from the scope of CBA No. 109:

• workers that are dismissed in the following cases:
  • during the first 6 months of employment;
  • to be registered unemployed receiving employer-paid compensation (old bridging pension scheme);
  • for statutory retirement;
  • due to the cessation of business;
  • due to the closure of the enterprise;
  • as part of a collective dismissal;
  • in case of multiple dismissal as part of restructuring, as defined at industry level;
  • on serious grounds;
  • when the employer must follow a specific dismissal procedure laid down by an Act or a collective bargaining agreement (e.g. in case of dismissal of a (candidate) workers' representative for the works council or committee for the prevention and protection at work).

   

• workers employed under a temporary agency contract or a student employment contract;
• the following manual workers:
  • • until 31 December 2015, those concerned by the scheme of temporary derogations of severance notices. This scheme applies to certain manual workers who fall under joint bargaining committees 109, 124, 126, 128.01, 128.02, 140.04, 142.02, 147, 301.01, 311, 324 and 330.
    • without time limit, those concerned by the scheme of permanent derogations of severance notices. This scheme applies to certain manual workers who fall under joint bargaining committees 124 and 126.

   

The rules on unfair dismissal under article 63 of the Employment Contract Act of 3 July 1978 as in force on 31 March 2014 continue to apply to these manual workers.

The dismissed worker has the right to be informed by the employer of the specific reasons for his dismissal.

Procedure

A worker who wishes to know the specific reasons for his dismissal must send his request to the employer by registered letter within the following time limits:

• when the employer terminates the contract with payment in lieu of notice, within 2 months after the contract of employment has been terminated;
• when the employer terminates the contract with notice, within 6 months after service of notice, however without exceeding 2 months after the termination of the employment contract.

The employer is then obliged to inform the worker by registered letter of the elements that allow him to know the specific reasons for dismissal, and this is to be done within 2 months from the date of receipt of the registered letter containing the worker's request.

However, the employer who has informed, at his own initiative and in writing, the worker of the specific reasons for dismissal is not required to respond to the worker's request, provided that this statement contains the elements that allow the worker to know the specific reasons for dismissal.

Sanction

If the employer fails to inform the worker who has made the request, of the specific reasons for dismissal or if he does so too late, he shall be liable to the worker a lump sum civil fine of 2 weeks' pay.

This fine does not apply if the employer has provided, at his own initiative and in writing, the specific reasons for dismissal of the worker.

NB – This fine can be combined with the compensation which the employer may be liable in case of clearly unreasonable dismissal (see below).

In case of clearly unreasonable dismissal, the employer is liable to pay compensation to the worker.

Notion

CBA No. 109 defines clearly unreasonable dismissal as: "the dismissal of a worker who was hired for an indefinite period, which is based on reasons that are unrelated to the abilities or conduct of the worker or that are not based on the operational requirements of the undertaking, establishment or service and that would never have been decided by a normal and reasonable employer ".

Sanction

In case of clearly unreasonable dismissal, the employer will be liable for compensation corresponding to at least 3 weeks' pay and a maximum of 17 weeks' pay.

NB - This compensation can be combined with the fine of 2 weeks' pay which the employer is liable if he fails to state the reasons for dismissal (or if he does so too late) (see above).

Burden of proof

In the event of a dispute, CBA No. 109 provides rules on the burden of proof. They vary depending on whether the employer has stated or not the reasons for dismissal.

The employer has stated the reasons for dismissal

The burden of proof is on the party making the assertion.

The employer failed to state the reasons for dismissal

If the worker has submitted a request to state the reasons for dismissal, the employer is required to establish the reasons invoked for the dismissal and which prove that the dismissal was not clearly unreasonable.

If the worker has not submitted a request to state the reasons for dismissal, the worker is required to provide proof of the elements that indicate that the dismissal is clearly unreasonable.

Source: Collective bargaining agreement No. 109 on the statement of reasons for dismissal, www.cnt-nar.be. 

Auteur: Catherine Legardien

26/02/2014