On January 18, 2024, the Belgium government submitted a draft law that would require employers to justify their decisions to dismiss contractual employees in the public sector.

The draft law aims to implement the Act of 26 December 2013 on the unified status between blue-collar workers and white-collar employees. This Act removed the provision on wrongful dismissal of blue-collar workers from the Employment Contracts Act to eliminate this difference between blue-collar works and white-collar employees. Implementation of this Act differed in the private and public sectors:

• For the private sector, this Act took effect with the enactment of the collective bargaining agreement (CBA) No. 109, which is the generally binding collective bargaining agreement entered into with the National Labor Council concerning the employer's justification of dismissal.  The new regulations apply to dismissals in the private sector declared or served from April 1, 2014.

• For the public sector, the provisions of the Act were to take effect with the enactment of regulations comparable to CBA No. 109. To date, no similar regulation has been implemented. The Constitutional Court therefore ruled in a judgment dated June 30, 2016 that, pending the legislator's decision, it is up to the courts, by applying general contract law, to safeguard the rights of all public sector employees in the event of manifestly unfair dismissal without discrimination, guided by CBA No 109.

The government is now (10 years later) moving forward with the January 18, 2024 draft law to create a similar set of rules for the public sector. Since the courts are now used to applying CBA No 109, it was decided to provide a set of rules as close as possible to those established by collective bargaining agreement No 109, taking into account the specificities of the public sector.

Scope

The rules on grounds for dismissal and manifestly unreasonable dismissal apply only to public sector employees whose employment relationship is governed by the Employment Contracts Act and therefore not to statutory employees in the public sector or to employees in the private sector.  

The proposed rules mirror the scope of CBA No 109 as much as possible, adopting the principles of that law in applying it to the public sector. The regulations therefore do not apply when the workers concerned are dismissed:

1. during the first six months of employment, provided that successive previous fixed-term or temporary employment contracts for the same job with the same employer are taken into account for the calculation of the first six months of employment;
2. during a temporary employment contract;
3. during a contract for student work;
4. to end the employment contract entered into for an indefinite period from the first day of the month following the month in which the employee reaches the statutory retirement age.

These rules also do not apply to employees dismissed for serious cause or for whom the employer must follow a special dismissal procedure laid down by law.

Preliminary interview and written notification of the reasons for dismissal

If an employer intends to dismiss an employee for reasons related to them as a person or their conduct, the employer shall invite the employee to be heard beforehand in explaining the facts and reasons for the contemplated dismissal decision. To this end, these facts and reasons should have been communicated by the employer to the employee in advance and the employee should have sufficient time to prepare for the interview or submit written comments. This guarantee to be heard in advance and to be able to comment appropriately, which is also included in the proposed law, follows from the general principle of good administration and fairness (allowing both sides to be heard), which applies without distinction to statutory and contractual employees in the public sector.

If the employer decides to dismiss the employee after the preliminary interview, the notice of dismissal must be in writing and state the specific reasons for the dismissal. Thus, unlike under CBA No 109, the employee does not have to request the reasons first.

The written notice must contain the elements that allow the employee to understand the specific reasons for their dismissal.

If the employer fails to provide the employee with a preliminary interview or to communicate the specific reasons that led to the dismissal, the employer is obliged to pay the employee compensation of two weeks' wages. However, the termination of the employment contract remains valid.

Manifestly unreasonable dismissal

By analogy with the rules in CBA No 109, manifestly unreasonable dismissal is the dismissal of an employee hired for an indefinite period of time for reasons unrelated to the employee's suitability or conduct or not based on the necessities of the operation of the company, institution or service, and which would never have been decided by a normal and reasonable employer. In the case of manifestly unreasonable dismissal, the employer also must pay the employee from 3 to 17 weeks' wages.

The compensation is not in addition to other compensation provided for under special dismissal procedures (except for the aforementioned compensation of two weeks' wages, which can be cumulated with said compensation).

The compensation is also not in addition to other compensation owed by the employer following the termination of the employment contract, with the exception of a compensation in lieu of notice, a non-competition payment, an extraction payment, or an additional compensation paid on top of social benefits, which can be cumulated with said compensation.

Since CBA No. 109 makes the burden of proof of a manifestly unreasonable dismissal depend on the course of the notification of the specific grounds for dismissal (i.e., did the employee request notification or not), while the notification in the provided regulation must be made by the government in any case, it follows that the burden of proof is governed by the common law of evidence, as provided in Article 870 of the Judicial Code (which stipulates that each party shall prove the facts it alleges), unless the employing government failed to communicate the specific reasons that led to the dismissal. If necessary, the onus is therefore on the employer to present evidence that the dismissal is not manifestly unreasonable.

Reliance|Littler will continue to monitor the entry into force of the final text of this draft law. Once in force, this law will undoubtedly bring clarity and uniformity in certain areas (e.g. sanction in case of non-compliance with the obligation to be heard with regard to contract workers); certain other aspects still seem to require further elaboration on the basis of case law (such as the concept of "sufficient time" to prepare the interview). We will stay on top of this developing matter.