1. Grounds for Termination
In the case of an indefinite-term employment contract, there should be real and serious grounds for dismissal. There are two types of valid grounds: personal grounds (employee performance) and economic grounds.
2. Collective Dismissals
a. Common rules
The common rules that apply to collective dismissal procedures are:
- Order of dismissals,
- Redeployment efforts,
- Informing the Labour Authorities.
Failure to respect these rules, the dismissal will be considered unfair by the Labour Courts.
The procedure will vary in function of the number of employees made redundant over a period of 30 days.
a. Less than 10 redundancies over 30 days
In collective redundancies involving companies of less than 50 employees, the company should consult the workers’ representatives (i.e. workers delegates for companies of less than 50 employees and Works Council in companies of 50 or more) on the redundancy project. In practice, an economic note will be handed in to the workers representatives presenting the reasons for the redundancies and the measures to be taken.
b. At least 10 redundancies over 30 days
Here again, the procedure will vary in function of the size of the company.
- In companies employing 50 employees or more
A new system of collective redundancies applies as a result of the law of 14 June 2013 on the security of employment.
3. Individual Dismissals
Once an employer believes that there is a valid ground for dismissal, it should send a letter giving the employee five working days’ notice of a meeting. This letter should set out the time and place of the meeting and the employee’s right to be accompanied by a fellow employee or a third party.
If the contemplated dismissals are based on economic grounds, the employer should elect which employees to make redundant by considering:
- The number of the employees’ dependants (especially for single parents);
- The employees’ length of service;
- Potential difficulties that the employees may face in finding new employment (such as age or disability); and
- The employees’ professional skills.
The employer should also make every effort to find employees facing redundancy another position within the same company or group, worldwide.
The employee made redundant will receive a dismissal indemnity calculated in function of the employee’s years of service, as well as any accrued and untaken paid vacation.
4. Separation Agreements
Is a Separation Agreement required or considered best practice?
The legislator imposes that a separation agreement, other than a dismissal or resignation, should be done through a specific procedure (mutually agreed termination), which is subject to specific regulations and conditions.
The employee who signs a conventional break with his employer receives a termination indemnity, which cannot be less than the dismissal indemnity the employee is entitled to had he been dismissed.
This method of separation will allow the employee to be entitled to unemployment benefits (if it meets general allocation conditions).
a. Does the age of the employee make a difference?
The age of the employee may affect the amount of the specific termination indemnity, as certain collective bargaining agreements provide for specific additional indemnities in function of the employee’s age.
b. Are there additional provisions to consider?
Additional provisions may be considered and indicated directly on the form, such as waiving of non-compete clauses.
5. Remedies for employee seeking to challenge wrongful termination
When seeking remedies, the employee who enjoyed at least 2 years of service or who was working in a company employing at least 11 employees, may request remedies before Labour Courts.
Where the employee had less than two years of service or worked in a company employing less than 11 employees, the damages will be awarded according to the prejudice suffered.
Please note that when entering into a “rupture conventionnell”, the remedies are limited. The employee may only challenge the mutually agreed termination in Court within a year of the homologation or authorization and only on the grounds that he did not consent to signing the agreement.