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When an employee is entitled to a notice period of at least 30 weeks in the event of dismissal by the employer, the notice period is converted into a package of measures to enhance employability.
This applies in the case of dismissal by the employer with performance of a notice period or payment of a severance pay.
This set of measures consists of two parts (also called "2/3, 1/3"):
1st part: this corresponds to the notice period equal to 2/3 of the notice period with a minimum of 26 weeks or to the pay in lieu of notice equal to the current remuneration (including benefits acquired under the contract) corresponding either to the duration of the notice period of this 1st part or to the part of this period still to run;
2nd part: this corresponds to the notice period equal to the remainder of the notice period or to the pay in lieu of notice equal to the current remuneration (including benefits acquired under the contract) corresponding to the duration of the remainder of the notice period which is not included in the notice period of the 1st part.
These measures are financed by the amount of employer contributions due for the 2nd part. To this end, this amount is transferred by the NSSO to the ONEm/RVA.
In the event of dismissal with a notice period, the employee has the right to be absent from work with continued pay from the beginning of the notice period in order to follow employability measures for a value corresponding to the amount of the employer contributions on the notice period of the 2nd part.
In the event of dismissal with payment in lieu of notice, the employee must make himself available to follow employability measures for a value corresponding to the amount of the employer contributions on the notice period of the 2nd part.
The obligation for the employee to make himself available for employability measures ends as soon as he takes up a new job or a self-employed activity.
The employability measures must meet the quality criteria for outplacement measures (referred to in Article 11/4 of the Act of 5 September 2001 on improving the employment rate of employees), if these measures concern outplacement.
The employability measures are complementary to outplacement measures. They do not apply when a transition path is established.
We are still waiting for more detailed information on the type of employability measures.
This measure applies to dismissals from 1 January 2023.
Several points of this new legislation are still being discussed by the institutions.
However, in order to comply with the new legal obligations regarding your NSSO DmfA declaration, we ask you to contact your Payroll Consultant to provide him with the necessary information in case of dismissal with performance of the notice period, as soon as the notice period is served.
Source: Law of 3 October 2022 containing various work-related provisions, Belgian Official Gazette, 10.11.2022
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