Justification of dismissal mandatory in the public sector

1. Necessity of such law for the public sector

When the notice periods for blue-collar and white-collar workers were harmonised in 2014 (Unified Status Law), the protection against unfair dismissal enjoyed by blue-collar workers on indeterminate employment contracts was repealed by the legislator, and the repeal was made conditional on the adoption of regulations on justification of dismissal for all workers, including public sector workers.

The private sector quickly settled the issue by adopting Collective Bargaining Agreement no. 109 on the justification of dismissal. Small hitch: the provisions of this regulation do not apply to public sector employers ...

This law - the main aim of which is to fill the legislative gap - comes not least in the wake of the rulings handed down by the Constitutional Court in 2014 and 2016 in which it called on the legislature to adopt a regime similar to Collective Bargaining Agreement no. 109 for the public sector. In the meantime, it invited the Courts and Tribunals to apply, without discrimination, the rules of general law to all contractual workers in the public sector and to draw inspiration, where appropriate, from the system provided by Collective Bargaining Agreement no. 109.

2. Regime applicable to the public sector 

The new legislative regime enshrines (i) the right to know the concrete reasons for dismissal and (ii) the right to be heard before the dismissal decision. 

1.2 Grounds for dismissal and manifestly unreasonable dismissal

This new legislative framework is similar to the one that exists for contract workers in the private sector, with the difference that, for the public sector, notification of dismissal must be given in writing and must automatically state the specific reasons for the dismissal.

It will apply to all workers under employment contracts not covered by the law on collective bargaining agreements and joint committees.

Excluded from its scope of application will be workers employed for less than 6 months, workers employed under temporary agency contracts, workers employed as students, workers dismissed to enable access to a pension, workers dismissed for serious misconduct or when the employer has to follow a specific dismissal procedure.

Employers who do not automatically inform workers – under indeterminate or determinate term contracts - of the specific reasons for dismissal will be liable to pay compensation equal to 2 weeks' pay.

In addition to this compensation, workers on indefinite-term contracts will also be entitled to compensation equal to a minimum of 3 weeks and a maximum of 17 weeks’ remuneration in the event of dismissal for a reason unrelated to their ability or conduct or which is not based on the operational requirements of the company, establishment or department and/or where such a decision would never have been taken by a normal and reasonable employer, which could be considered a manifestly unreasonable dismissal.

In principle, contractual worker in the public sector must prove that a dismissal was manifestly unreasonable, unless the employer did not automatically communicate the concrete reasons leading to this dismissal, in which case it is up to the employer to prove that the dismissal was not manifestly unreasonable.

2.2 Hearing prior to dismissal decision

Workers have the right to be heard prior to dismissal decision. This obligation was not part of the initial text of the draft law and was included at the request of the trade unions.

If an employer is considering dismissing a worker, it is obliged to inform the worker of the facts and the reasons for the proposed decision before the interview so that the worker can prepare for the hearing. The worker must be given sufficient time to prepare for the hearing or to submit his or her observations in writing. The employer may decide whether or not to proceed with dismissal only after the interview with the worker.

It should be noted that the law only obliges the employer to conduct a prior hearing with the worker in the event of dismissal linked to the worker's behaviour or aptitude.

In the event of breach of this obligation, the employer will be required to pay an automatic fixed indemnity equivalent to 2 weeks' salary.

3. Conclusion

The provisions of this new regulation will apply to dismissals notified from the first day of the 2nd month following its publication in the Moniteur belge.

Starting from this date, any employer in the public sector employing a contract worker will have to comply with the new regulations in their dismissal procedure.

In particular, employers in the public sector must ensure that their workers are heard in due time before dismissal, and that the facts and reasons for the proposed decision are communicated to them. Finally, employers must always ensure that the dismissal is notified in writing, and that this notification includes the specific reasons for the dismissal.

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