the use of language in the employer-employee relationship is regulated by law in Belgium. The use of a language other than the applicable one (Dutch, French or German) can be sanctioned by a nullity. In cross-border cases, the penalty of nullity, as provided in the regional language decrees, can be lifted. In the case at hand, the Belgian branch of an international group cited “malfunction” as the basis for terminating an employee with dual nationality (Dutch / Spanish). The employee claimed that the employer could not invoke the evaluation forms, which he produced as evidence for the malfunctioning of the employee, as they were drafted in English and were therefore in violation of the Flemish Language Decree. The Labor Court of Appeal of Brussels however, judged that the cross-border character of the employment relationship lifts the penalty of nullity as foreseen in the Flemish Language Decree.
A security guard performed activities for a security company on a self-employed basis from 1 January 2007 till 31 December 2008. After his contract was terminated, the security guard claimed that in reality he was subordinated to the security company and therefore his service contract should be reclassified as an employment contract. The Court of Cassation overruled the judgment of the Labour Court of Appeal. The Court of Cassation ruled that the fact that one of the parties in an employment relationship has the right to impose disciplinary sanctions to the other party, excludes the possibility of self-employment, except when such disciplinary right is inherent to the profession and imposed by (virtue of) law. As this was not the case in the case at hand, the judgment of the Labour Court of Appeal was overruled.
An employee representative was fired for serious cause as he had deliberately used the terror threat to pull a “prank-call” on the safety manager of his company. By doing that, the concerned employee caused a serious panic in the company. Taking into account the recent terrorist attacks, the Labour Court of Appeal ruled that the dismissal for serious cause was justified as the concerned employee, by pulling such a prank and contributing to the panic which was caused by the terrorists, had broken the relationship of trust with the employer. This judgment is an interesting illustration of the possible impact of the terror threat on the employment relationship.
In order to prevent social dumping in the transport sector, the principle that an employee who works in different countries, is subject to the law of the country in which the employee usually carries out his/her work, will be introduced in the Belgian legislation.
Every two years a wage norm is established. This wage norm determines whether and how the labor costs of companies may increase so that Belgium can remain competitive with her neighbors and main trading partners Germany, the Netherlands and France. In principle, the wage standard is established by an inter-professional agreement between the Social Partners. However, in the past years the Social Partners did not succeed in concluding such an agreement and the wage standard was established by Royal Decree. The draft of the bill withholds the principle that the wage standard is established by the Social Partners – and in default by Royal Decree.
As a consequence of a recent wave of restructurings and therewith associated collective dismissals, the Federal Minister of Work intends to adjust the legislation on collective dismissals and has submitted in that regard 5 measures to the social partners for discussion. These measures will be discussed among the social partners and counter-proposals are expected. There is currently no deadline in that regard.
As of 1 October 2016, an employer is obliged to pay the salary of the employee by bank transfer. Payment in cash is only allowed when a collective bargaining agreement at sector level is concluded, which allows such payments or when an implicit agreement or use was officially formalised.
In a recent case, a shop manager was fired for serious cause, as she did not comply with the store policies. However, the Labour Court judged that the facts at hand did not justify a dismissal for serious cause. As a result, the Labour Court condemned the employer to pay the employee the legal termination indemnity. The Labour Court also condemned the employer to an indemnity for unjustified dismissal of 17 weeks’ salary. In the past, it was rather difficult for (white collar) employees to obtain, in addition to the legal termination indemnity, damages for unfair dismissal, of which, the relatively low amount was often set by the judge. However, things have changed since 1 April 2014, and the employer is obligated to duly motivate the dismissal under penalty of an indemnity ranging from 3 to 17 weeks’ salary.
As of 1 January 2017, both funds will merge into a new fund ‘Fedris’ or ‘Federal Agency for workrisks’. The purpose of the merger is to cut government expenses since the employees of both funds will be accommodated in the same building.
As of 1 October 2016, interimcontracts will have to be signed before the start of work. Under the old legislation, interimscontracts could still be signed two days after the start of work. This made abuse possible (for example: in some cases the interimworkforce had a work accident the first day of work due to which his/her employers did not want to sign the interim contract anymore). Now, such abuse is no longer possible.