New Act of 13 March 2024 (published on 20 March 2024) sets out the future rules regarding the obligation to motivate the dismissal of contractual workers in the public sector and offer protection against manifestly unreasonable dismissal. The act is heavily inspired by the rules for the private sector, but there are also significant differences.
Since 2014, workers in the private sector have been awarded the right to request a written motivation for their dismissal by the employer. This was introduced by the national collective bargaining agreement no. 109. Such CBAs do not apply to the vast majority of the public sector, which means that there are no equivalent procedural guarantees for contractual workers in the public sector. This legal vacuum led to 10 years of discussions in Belgian case law. The Constitutional Court deemed the lack of rules in the public sector to violate the constitutional principle of equality and advised the Belgian labour courts (while assessing cases on a dismissal of a contractual worker in the public sector) to be guided by the rules of CBA no. 109, pending a legal framework for the public sector. Therefore, Belgian labour courts started to apply the rules of CBA no. 109 to dismissal cases in the public sector by analogy, but there were still differences between the various labour courts.
After 10 years of legal uncertainty, the act of 13 March 2024 (published on 20 March 2024) finally offers similar procedural guarantees to contractual workers in the public sector. The act will enter into force on the first of May 2024.
As of 1 May, the following procedural guarantees will be applicable to public employers:
- Motivation of dismissal: A first important difference with CBA no. 109 for the private sector is the fact that the public employer must immediately motivate the dismissal in writing on its own initiative. In the private sector, the employer only needs to provide a written motivation upon the formal request of the employee. A compensation of 2 weeks' salary is due in case of a violation of the motivation duty.
- Preliminary hearing: in case of a dismissal intention, the public employer must hear the contractual worker prior to a dismissal decision, in line with the previous judgements by the Constitutional Court. If the public employer does not hear the worker, he must pay a compensation equal to two weeks' salary. However, the dismissal itself will remain valid. The same scope of application applies as for the motivation obligation.
- Manifestly unreasonable dismissal: In line with the applicable
rules in the private sector (CBA no. 109), the dismissal of a
contractual worker by a public employer cannot be based on
manifestly unreasonable grounds. A manifestly unreasonable
dismissal is a dismissal of a contractual worker (with an
employment contract for an indefinite period of time) that:
- is not based on reasons related to the worker's suitability or conduct, or
- is not based on necessities concerning the operation of the undertaking, institution or service,
- and which would never be decided upon by a normal and reasonable employer.
In case the public employer has motivated the dismissal, it will be up to the employee to prove that the dismissal is manifestly unreasonable. If the employer did not provide written motivation for the dismissal upon his initiative, the burden of proof will be reversed onto the employer. A manifestly unreasonable dismissal is sanctioned by a compensation of 3 to 17 weeks' salary. This compensation cannot be accumulated with other compensation to be claimed upon dismissal, with an exception regarding the compensation of 2 weeks' salary upon violating the motivation or the hearing obligation.
The act will apply to all contractual workers in the public sector and their employers insofar the employer does not fall under the scope of the CBA-Act (otherwise CBA no. 109 applies). The Act does not apply to dismissals in the following cases:
- For a worker with less than 6 months seniority;
- For a temporary agency worker;
- For a student worker;
- If the termination results from reaching the retirement age;
- For a dismissal for serious cause (thus, the question regarding the compatibility of the hearing requirement and the double three-day deadline of Article 35 Employment Contracts Act is not resolved);
- In case there is a specific dismissal procedure imposed by law (this refers in particular to teaching staff).
Source: Act of 13 March 2024, published in the Official State Gazette on 20 March 2024
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