Do you employ contractual employees as a public employer? Then you undoubtedly know the dos and don’ts on dismissal. But beware! As of 1 May 2024, stricter rules will govern the dismissal of a contractual employee as a result of the Act of 13 March 2024 on the reasoning for dismissal and manifestly unreasonable dismissal of contractual employees in the public sector. Your dismissal policy will need to be updated.
Public employer
The tightened regulations apply to public employers. You qualify as a public employer if you do not fall within the scope of the Act of 5 December 1968 on collective bargaining agreements and joint committees. Hence, employers within the public sector are generally concerned, albeit with certain exceptions.
Obligation to hold a prior hearing
As a public employer, you are now obliged to hear the contractual employee if the dismissal is related to his/her person or conduct. This hearing must take place prior to the dismissal. You must also communicate the facts and reasons justifying the dismissal to the contractual employee before the hearing, and the employee must be given sufficient time to prepare for the hearing or be given the opportunity to submit written comments.
This hearing obligation already existed based on case law applying the principles of sound administration, but it is now embedded in legislation. If you fail to comply with this obligation, you will owe the contractual employee compensation equal to two weeks’ remuneration. Moreover, the employee will also be allowed file a claim for damages for loss of opportunity, as a hearing could have led to an outcome other than dismissal.
Justification for dismissal
If you proceed with the dismissal after the hearing, you must do so by means of a written notice which also states the specific reasons for the dismissal.
Failure to comply with this obligation will again result in compensation equal to two weeks’ remuneration.
Manifestly unreasonable dismissal in the public sector
From now on, as is the case in the private sector, a contractual employee in the public sector can invoke the rules on manifestly unreasonable dismissal. Such dismissal is at issue where a contractual employee with an employment agreement of indefinite duration is dismissed for reasons that are neither related to his/her suitability or behaviour nor to the organisational needs of the employer, and where a normal and reasonable employer would never have decided to implement such dismissal.
In principle, the contractual employee bears the burden of proof unless the employer has failed to communicate the reasons for dismissal. In that case, the burden of proof is reversed, and you as the employer will have to prove that the dismissal is related to the employee’s suitability or behaviour or is based on organisational necessity.
If there has been a manifestly unfair dismissal, you may be ordered to pay additional compensation equal to between three and seventeen weeks of remuneration. This compensation cannot be cumulated with other compensation amounts, except for severance pay, a non-compete payment, a client indemnity or additional compensation on top of a social benefit.
Exceptions to the obligations?
Does this mean that from now on you will have to hear and justify every dismissal of a contractual employee, and that there is always a risk of a claim for manifestly unreasonable dismissal? No. In fact, the Act provides for a series of exceptions: the obligations do not apply in case of a dismissal:
- during the first six months of employment,
- under a temporary employment agreement,
- under a student employment agreement,
- as from the first day of the month following the month in which the employee reaches the statutory retirement age,
- in the context of a dismissal for a serious reason, or
- in the context of a special dismissal procedure to be complied with by the public employer.
Even in these cases, however, we advise you to always properly document and explain the reason for dismissal to the dismissed employee in order to avoid possible disputes afterwards.
Off you go!
From 1 May 2024 onwards, if you are considering dismissing a contractual employee, you will have to consider the new obligations on holding a hearing, justification of the reasons for dismissal, and manifestly unreasonable dismissal.
Good preparation for the dismissal is essential: it is important to properly document personnel files, and you will need to review your internal dismissal policy to take these new obligations into account.
We are, of course, ready to advise and assist you in connection with future dismissals.
