Belgium: Sanction for motivation of dismissal without registered letter – excessive formalism?

On 17 May 2019, the Brussels Labour Court of Appeal ruled on a dispute concerning the formal conditions for the communication of the motivation of the dismissal by the employer within the framework of collective agreement no. 109 (CBA no. 109).

When the employee was dismissed, the employer stated that his “profile no longer met the requirements of the position”. In accordance with the procedure laid down in CBA no. 109, the employee requested from the employer, the specific reasons for his dismissal, by means of a registered letter. The employer then informed the employee of the reason for his dismissal by e-mail. However, Article 5 of the CAO 109 stipulates three conditions that the employer must take into account when communicating the reasons of the dismissal:

• The notification must be made by registered letter;
• This registered letter must be sent within 2 months of receipt of the registered letter with the request of the employee;
• The registered letter must contain the elements that allow the employee to know the concrete reasons that led to his dismissal.

As the notification, although within 2 months, was not made by registered letter, the employee claimed the payment of a fixed civil penalty of two weeks’ salary, as provided for in article 7 of CBA no. 109, because the notification was not made correctly.

The employer submitted a counterclaim on the basis of the civil law principle of abuse of rights, because the employer had indeed communicated the concrete reasons and the employee had actually taken note of them. The employer relied on a disputed point of view in legal doctrine that demanding such a fine, when the employee acknowledges that he has become aware of the reason for the dismissal in another way, constitutes an abuse of law. Furthermore, the employer made a pointed reference to the purpose of the collective agreement, which he considered to have been achieved and, moreover, the report of the National Labour Council to the collective agreement states, according to the employer, that the purpose of this regulation is precisely to avoid legal proceedings.

The Labour Court ruling however, refutes this last argument, since the report to the collective agreement only refers to avoiding legal proceedings when the dismissal is disputed, which is not the case here. Nevertheless, the Labour Court states that the purpose of CBA no. 109 is not to impose an overly formalistic framework. Indeed, collective agreement no. 109 also allows the employer to communicate the concrete reasons on his own initiative (e.g. during or shortly after the dismissal). In that case, the formal requirements do not apply. The fact that in this case, the employer did not communicate the concrete reasons of its own accord (the reason that the employee’s “profile no longer met the requirements of the job” is not concrete enough), and that the employee did submit an application by registered letter, means that there can be no deviation from the formal requirements imposed on the employer. In these circumstances, the communication had to be made by registered letter.

Abuse of rights can be invoked if the invocation of a right constitutes an apparent abuse. Since the employee only invokes a rule in accordance with the will of the social partners (the CBA), there is no question of an apparent abuse. The Labour Court, therefore, ordered the employer to pay the fixed fine to the employee.