As of 1 April 2014, a dismissal will be considered as ‘unjustified’ because it is ‘manifestly unreasonable’ if the dismissal:
i) has been carried through for reasons unrelated to the worker’s capability or conduct, or the operational requirements of the undertaking, and
ii) would never have been decided upon by a normal and reasonable employer.
If a dismissal is considered to be ‘manifestly unreasonable’, the employee will be entitled to damages ranging between 3 and 17 weeks of salary, depending on the level of unfairness of the dismissal.
One of the first rulings in this respect was the ruling of 8 October 2015 of the Labor Tribunal of Leuven, which held that the dismissal in the case at hand was not manifestly unreasonable (see our Web Alert of December 2015).
The Labor Tribunal of Antwerp recently came to another conclusion, in a case where an employee had been dismissed for being on sick leave for 60 days and for indicating to a colleague that she had the intention to ‘take up additional leaves’ after returning from sick leave. The employer held that the employee’s absence caused a significant increase in workload for her colleagues, which needed to be dealt with. The Labor Tribunal of Antwerp held that the dismissal of the employee was not necessary in order to be able to look for a replacement and that the employer had acted imprudently by completely relying on the statements of another employee. The Court sentenced the employer to pay an indemnity of 8 weeks of salary.