Student employment (2): what are the rules for terminating a contract?

Auteur: Catherine Legardien
Datum:

The student employment contract must state the start and end date of the employment. In that regard the contract is concluded for a fixed term.

Therefore, the student employment contract shall automatically expire on the date laid down in writing, without having to give any notice whatsoever.

Example – A student employment contract is concluded from 1 August to 15 September 2014. Consequently, the contract automatically expires on 15 September 2014 without notice nor compensation.

However, the student or the employer can terminate the contract prior to the anticipated expiry date. Several cases are possible.

For student employment contracts starting as from 1 January 2014, the first 3 working days are automatically regarded as probation period.

Before the expiry of this period, each party can terminate the contract without notice nor compensation.

Remark – No other formality shall be required to terminate the student employment contract during the probation period. Nevertheless, we advise you to confirm the termination of the employment relation in writing.

In the absence of a trial period or after the expiry hereof, the student employment contract can be terminated by notice.

The duration of the period of notice varies according to whether the contract has been concluded for maximum one month or for more than one month. The duration of one month is calculated from day to day.

The length of the notice period is determined as follows:

  • if the student contract was concluded for maximum one month (e.g. from 6 August until 5 September 2014), the period of notice shall be 3 days in the event of dismissal and one day in the event of resignation;
  • if the contract was concluded for longer than one month (e.g. from 6 August until 7 September 2014), the employer must observe a 7-days notice period and the worker a 3-days notice period.

Remark – To give notice,  the rules which apply to normal employment contracts must be observed. The period of notice shall begin on the Monday following the week in which the notice has been given.

If the student is ill longer than 7 continuous calendar days, the employer can terminate the agreement after the 7th day of illness. In that case, he shall have to pay a compensation equal to the wage of the period of notice or to the remainder of the term that has to be served.

Example – A student is employed with a student employment contract from 1 August to 30 September 2014. On 20 August 2014 the student submits a medical certificate for his illness, valid from 20 to 31 August, to the employer. The employer can terminate the contract with the payment of a compensation of 7 calendar days, but no earlier than 27 August 2014 (so only after 7 continuous calendar days of incapacity for work).

Remark – However, this rule does not prevent the employer from terminating the contract, provided that a compensation is paid before the expiry of 7 continuous calendar days of incapacity for work. In that case, he shall have to provide other reasons than the student's illness to justify the termination of the employment relation. In this case, you are facing the risk that this will be considered an unfair dismissal!

If there is no written contract or if the contract does not contain specific mandatory information or if the employer has not submitted the 'DIMONA declaration' (see our Infoflash of 22 May 2014 'Student employment – which formalities must the employer fulfil?'), the student can terminate the contract at any time without notice nor compensation.

If there is no written contract, if the start or the end date of the contract is not stated, if the work schedule is missing or if the contract does not refer to the work schedule in the employment regulations , the employer shall observe the rules of an employment contract for an indefinite period. This implies that the employer shall have to observe the normal period of notice when terminating the contract. This is not the case if he can prove that the absence of such indications concerning the work schedule or the reference to such schedule in the employment regulations does not cause any harm to the student.

Download the student contract!

Source: articles 120 to 130ter of the Employment Contract Act of 3 July 1978.

Auteur: Catherine Legardien

28/05/2014