As part of the reform of the local civil service, the Walloon legislator has explicitly determined which local bodies are competent to terminate the employment contracts of contractual staff. The Walloon legislator also confirmed the possibility of delegating this power and specified to which body this delegation may be made and the terms and conditions of such delegation.
Until now, the Code of Local Democracy and Decentralisation and the Organic Act of 8 July 1976 on the Public Centres for Social Welfare (PCSWs) did not explicitly state which authority was competent within the municipalities, PCSWs, provinces, municipal associations and the so-called ‘Chapter XII associations' (i.e. the public institutions that provide a framework for partnerships between PCSWs and other public authorities or legal entities of public or private law), to proceed with the dismissal of a contractual employee. Nor was it specified to what extent this competence could be delegated.
It was generally accepted that the authority competent to recruit contractual staff was also competent to decide to dismiss them. In practice, this meant the Municipal Council for Municipalities and the Council for Social Action for PCSWs. It was also generally considered that the Council could delegate its power to dismiss to the Municipal College (for municipalities) or the Permanent Bureau (for the PCSWs).
On 18 January 2022, in a resounding ruling, the Mons Labour Court declared the dismissal of a contractual employee for gross misconduct to be unlawful, on the grounds that it had been decided by the Municipal College and that the latter was not competent to dismiss the employee for gross misconduct. The Court held that, while the Council could delegate its power to dismiss to the Municipal College, dismissal for serious misconduct had to be the subject of a special and express delegation.
On 14 March 2024, the Walloon Parliament adopted two decrees, amending the Local Democracy and Decentralisation Code and the PCSW Organic Act of 8 July 1976, aimed at reforming the local civil service. As part of this reform and following the ruling of 18 January 2022, the Walloon legislator explicitly regulated the power to terminate an employment contract and the delegation of this authority.
This confirms that the following bodies are competent to terminate the contract of a contractual employee:
- Municipalities: Municipal Council;
- PCSWs: Council for Social Action;
- Provinces: Provincial Council;
- Municipal Associations: Board of Directors;
- Chapter XII Associations: Board of Directors.
The Code of Local Democracy and Decentralisation and the Organic Act of PCWS now also expressly authorise these bodies to delegate, in whole or in part, the power to dismiss contractual staff. However, there is an exception for holders of a local management position in a Chapter XII association or a municipal association. Delegation may be established in favour of the following bodies:
- Municipalities: Municipal College;
- PCSWs: Permanent Bureau or Special Committees;
- Provinces : Provincial College;
- Municipal Associations: Restricted management body;
- Chapter XII Associations: Restricted management body.
In the power of attorney it must expressly be stated which type of act may be taken by the body to which the power has been delegated, i.e.:
- dismissal with notice;
- dismissal with payment in lieu of notice;
- dismissal for gross misconduct, and/or;
- termination of the employment contract by mutual agreement.
In the case of the Municipalities and Provinces, the body that ultimately took the decision to dismiss must inform the body from which it received the delegation.
These various measures came into force on 1 June 2024 for the PCWSs and the Chapter XII associations, and will come into force on 1 July 2024 for the municipalities, the municipal associations and the provinces.
Key message
If, as a Walloon local authority, you wish to delegate to one of the bodies referred to above the power to terminate the employment contracts of contractual staff, make sure to explicitly specifiy in a written power of attorney which types of termination of the employment contract are covered.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.