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Unreasonable Termination - Belgian Supreme Court Confirms: No Employee Fault Required

Dec.05.2018

Since April 2014, both blue collar and white collar employees in Belgium can claim legally fixed damages (3 to 17 weeks’ salary) for ‘obviously unreasonable termination’ of their employment contract (Collective Bargaining Agreement n° 109). Before that agreement, only blue collar employees could claim fixed damages for ‘unreasonable termination’ (article 63 of the Employment Agreements Act).

Since CBA n° 109 is recent legislation, case law is still up for interpretation. For the first time since CBA n° 109 took effect, the Belgian Supreme Court ruled about the interpretation of the concept of unreasonable termination (even if the case concerns the old, abolished, article 63, which however remains relevant since the principles at stake under CBA n° 109 remain essentially the same).

The Supreme Court confirmed its existing case law and ruled that the legal concept of unreasonable termination does not require a fault by the employee. In the case at issue, it was proven that the employee was terminated for reasons related to issues communicating with colleagues (the employee was not able to communicate in a positive and amicable way (cf. oral and written reports which became more and more contentious)) and the fact that the employee was suffering from this situation. While the Brussels Labor Court ruled that the termination was unreasonable since it was not demonstrated that the communication difficulties and the suffering at work could be attributed to the employee, the Supreme Court decided that the termination was not unreasonable.

Concretely, in daily HR practice, bear in mind that a specific fault, professional shortcoming, or concrete inappropriate behavior is not required to proceed with a termination based on personal reasons. Not fitting in with the team and not being able to decently work with colleagues, can justify a termination. Of course, it is of utmost importance that you are able to demonstrate the reasons invoked. Copies of evaluation reports and complaints from colleagues or clients should be kept carefully in the employee’s file.

Our Brussels Labor & Employment practice is available to advise on termination strategy and implementation, as well as on any other aspect of individual and collective labor law in general.

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For more information, please contact the professional(s) listed below, or your regular Crowell & Moring contact.

Emmanuel Plasschaert
Partner – Brussels
Phone: +32.2.282.4084
Email: eplasschaert@crowell.com
Evelien Jamaels
Associate – Brussels
Phone: +32.2.214.2814
Email: ejamaels@crowell.com
Stephanie Michiels
Associate – Brussels
Phone: +32.2.214.2846
Email: smichiels@crowell.com