Termination of the contract for reasons of force majeure in the event of permanent unfitness: follow the procedure!

The termination of the contract for reasons of force majeure as a result of permanent unfitness of the worker henceforth can only be determined after a reinstatement scheme.

This is stipulated by the Act of 20 December 2016 containing various provisions in employment law related to the unfitness for work, published in the Belgian Official Gazette on 30 December 2016 and the duration of which was set at 9 January 2017.

This Act is one of the government measures to promote the reinstatement of workers who are unfit for work.

The Act of 20 December 2016 containing various provisions in employment law related to the unfitness for work also stipulates the rules with regard to the impact on the employment contract of a temporary performance of adapted or other work, authorised by the mutual insurance fund's medical adviser. Consult our Infoflash of 2 January 2017 on this matter.

Some theory

Force majeure

Force majeure is an unforeseen occurrence taking place beyond the will of the parties and which is an insurmountable obstacle for the employer and the worker preventing the employer from providing work and the worker from working.

This occurrence constituting the case of force majeure results in the immediate termination without period of notice or compensation in lieu of notice.

From the permanent unfitness to perform the agreed work ...

To date, a permanent unfitness preventing the worker from resuming the agreed work is an occurrence constituting such case of force majeure according to the Supreme Court of Appeal.  This case of force majeure only must be assessed by reference to the agreed work.

"Agreed work" must be understood as being the tasks that the worker usually performs in accordance with his contract, and the working hours that were agreed upon by the parties.

The proof of the permanent nature of the unfitness for work must be established through two medical certificates (one of the GP treating the worker and one of the prevention adviser-occupational health officer) stating that the worker is permanently unfit for the agreed work.

Clarifications

The Royal Decree of 28 May 2003 relating to the monitoring of the health of workers provides for the possibility for the worker who was declared permanently unfit for the agreed work to benefit from a reinstatement procedure. However, the observance of this procedure is not a condition to invoke the termination of the contract for reasons of force majeure.

Article 34 of the employment contracts Act of 3 July 1978 stipulated that the unfitness for work as a result of an illness or accident permanently preventing the worker from performing the agreed work may only terminate the employment contract for reasons of force majeure provided that a specific procedure (to encourage the reinstatement of workers) is observed. However, this article has never became effective. Therefore, the aforementioned principles of the case-law of the Supreme Court of Appeal to date constitute grounds on which the contract may be terminated for reasons of force majeure as a result of the permanent unfitness of the worker.

… to the permanent unfitness to perform adapted or other work

The Act of 20 December 2016 containing various provisions in employment law related to the unfitness for work introduces a new article 34 in the employment contracts Act of 3 July 1978 becoming effective on 9 January 2017.

This article stipulates that ‘the unfitness as a result of illness or accident which makes it permanently impossible for the worker to perform the agreed work, may only terminate the employment contract for reasons of force majeure upon completion of the reinstatement scheme of the worker who permanently cannot perform the agreed work (…)’.  

In practice

Principle

As from 9 January 2017 a reinstatement scheme will have to be started and completed to terminate the employment contract for reasons of force majeure in the event of permanent unfitness of the worker.

This reinstatement scheme is provided for by the Royal Decree of 28 October 2016 amending the Royal Decree of 28 May 2003 relating to the monitoring of the health of workers with regard to the reinstatement of workers unfit for work.

It aims at promoting, with the assistance of the prevention adviser-occupational health officer, the reinstatement of the worker who can no longer perform the agreed work by giving him adapted or other work, more specifically if he is permanently unfit to perform the agreed work.

Also refer to our Infoflash of 2 December 2016 for a general outline of the regulations in relation to the reinstatement scheme.

When does the reinstatement scheme end?

For a worker who is permanently unfit to perform the agreed work, the reinstatement scheme is finally completed in the following three cases, more specifically when:

• 1st case: the employer has received the reinstatement evaluation form from the prevention adviser-occupational health officer, in which the latter considered that the worker is permanently unfit to perform the agreed work, that he is not able to perform adapted or other work and that all legal remedies have been exhausted;
• 2nd case: the employer has provided the prevention adviser-occupational health officer with the report according to which it is technically or objectively impossible to draw up a reinstatement plan or if this cannot be demanded for duly justified reasons;
• 3rd case: the employer has provided the prevention adviser-occupational health officer with the reinstatement plan which has not been accepted by the worker.

So only in these three cases, the employment contract may be terminated for reasons of force majeure in the event of permanent unfitness of the worker.

Procedure?

A specific procedure mainly involving the worker, the employer and the prevention adviser-occupational health officer may lead to each of these three cases. This procedure involves 4 steps (initiative, reinstatement evaluation, reinstatement plan and decision of the worker) and specific deadlines that must be observed.

Initiative

The reinstatement request can be submitted to the prevention adviser-occupational health officer:

• either by the worker during the period of his unfitness (or, if the worker agrees, by his GP),
• or by the employer, at the earliest 4 months after the start of the worker's unfitness or the time when the worker provides him with a certificate of his GP proving his permanent unfitness to perform the agreed work,
• or by the health insurance fund's medical adviser if he judges that the worker is eligible for reinstatement.

Evaluation of the reinstatement

The prevention adviser-occupational health officer invites the worker for whom he has received a reinstatement request to evaluate the reinstatement. At the end of the evaluation, he writes down his decision on the reinstatement evaluation form. This decision may consist of:

• a permanent unfitness to resume the agreed work and the worker is able to perform an adapted or another workwith the employer;
• or a permanent unfitness to resume the agreed work and the worker is unable to perform an adapted or anotherwork with the employer.

The worker who does not approve of the reinstatement evaluation, can lodge an appeal with the doctor-social inspector of the General Directorate for the Supervision of Well-being at Work within a period of 7 working days after he received the reinstatement evaluation form. The worker must inform the employer hereof.

The reinstatement scheme is permanently completed when the employer had received the reinstatement evaluation form from the prevention adviser-occupational health officer, in which the latter considered that the worker is permanently unfit, that he is not able to perform adapted or other work and that all legal remedies have been exhausted. This is the first case in which the reinstatement scheme is completed.

Reinstatement plan

In principle, the employer must draw up a reinstatement plan (upon expiration of the term of appeal or after having received the result of the appeal procedure confirming the decision of the prevention adviser-occupational health officer) if it regards a case of permanent unfitness and if the worker is able to perform adapted or other work with the employer.

If the employer believes that the establishment of a reinstatement plan is technically or objectively impossible or that it may cannot be demanded for duly justified reasons, he draws up a report in that sense.

The reinstatement scheme is completed when the employer has provided the prevention adviser-occupational health officer with the report according to which it is technically or objectively impossible to draw up a reinstatement plan or if this cannot be demanded for duly justified reasons; This is the second case in which the reinstatement scheme is completed.

Decision of the worker

Should the employer have drawn up a reinstatement plan, the worker has 5 working days upon receipt of the plan to approve or not and to return it to the employer:

If the worker does not approve of the reinstatement plan, he will include in it the reasons for his refusal.

The reinstatement scheme is completed when the employer has provided the prevention adviser-occupational health officer with the reinstatement plan which has not been accepted by the worker. This is the third case in which the reinstatement scheme is completed.

Effective date

The Act of 20 December 2016 containing various provisions in employment law related to the unfitness to work becomes effective on 9 January 2017.

Furthermore, the date on which the reinstatement scheme can start must be taken into consideration. This date depends on the person who has taken the initiative:

• if the initiative comes from the worker: from 1 January 2017 (regardless of the date of the beginning of his unfitness);
• if the initiative comes from the employer: from 1 January 2017 for incapacities starting as from 1 January 2016, and from 1 January 2018 for incapacities that have started before 1 January 2016.

Sources: Act of 20 December 2016 containing various provisions in employment law related to the unfitness for work, Belgian Official Gazette 30 December 2016; Royal Decree of 28 October 2016 amending the Royal Decree of 28 May 2003 relating to the monitoring of the health of workers with regard to the reinstatement of workers unfit for work, Belgian Official Gazette 24 November 2016.