Author: Pieter Pecinovsky
In a judgement of 11 January 2022 (21/338/A), the Labour Tribunal of Brussels accepted the immediate dismissal of an employee because he did not (correctly) wear his face mask and did not respect the social distancing measures.
The company had issued specific rules regarding the necessary measures in order to prevent the spread of the coronavirus. The employee also received multiple verbal and written remarks and warnings regarding his non-conforming behaviour, including hugging his colleagues. The employee argued that he did not wear his mouth mask correctly due to the physical nature of his work, which required the necessary energy and effort. This argument was cast aside by the tribunal as not relevant. He also claimed that he was not aware of the Covid-19 prevention rules within the company. However, the tribunal pointed to the clearly visible written communications to the employees and the general obligation to wear a (freely disposable) face mask. The employee also tried to downplay the relevance of face masks, which was condemned by the tribunal as ‘incomprehensible and unacceptable” for his own safety and for the safety of his colleagues. Furthermore, the tribunal also pointed out the (business) economic and social consequences of non-compliance with legal obligations and possible contagion.
The tribunal stated that the employee’s behaviour was sufficient to immediately and definitely make any professional collaboration impossible. Therefore, the employer could rightly terminate the employment contract without a notice period or compensation. The judgment is final.
This is not the first judgment in Belgium regarding the urgent dismissal of employees not respecting the Covid-19 measures. E.g. also the labour tribunal of Antwerp (dep. Hasselt) accepted the dismissal of an employee who refused to wear a face mask on 8 July 2020.
Key Action Points for Human Resources and In-house Counsel
- Make sure your company has a written policy (and written communications) on Covid-19 prevention measures, as this seems to be more important than the general legal obligations.
- If an employee disrespects the rules, make sure you build-up a case with written remarks.
- Make sure that the prevention measures are enforced and systematically applied. If the rules are less strictly applied within the company, it will be difficult to target specific employees.