Newsletter 2023 – 04
1 Jurisprudence – withholding obligation: RSZ reprimanded
President of the Antwerp Labor Court, Turnhout Division, March 16, 2023
The interim relief judge does not hold back: publication on the website (www.checkinhoudingsplicht.be) as a RSZ debtor is only permitted if the social security debt is established and due. The RSZ is obligated to remove it under penalty of a fine.
In construction – but also in the meat processing industry – there are special rules to encourage contractors to be careful when choosing the subcontractors they employ.
For example, Article 30a of the RSZ Act obliges contractors to withhold 35% of the amount invoiced by their subcontractors and transfer it to the RSZ if they have social security debts at the time of payment ("withholding obligation"). Contractors who fail to make this withholding are themselves obligated to pay this amount, plus a surcharge equal to the amount owed.
It is therefore crucial for a contractor to know whether their subcontractor is registered as the debtor by the RSZ (National Social Security Office) at the time the invoice is paid. A database has been created for this purpose (www.checkinhoudingsplicht.be), where anyone can check whether a company has social security debts by simply entering their company number. If so, the bar will turn red, and the contractor will know what to do. If the bar turns green, the company is not registered as a debtor.
The database does not provide any further information.
But what if a company is involved in a dispute with the RSZ (National Social Security Office) regarding a settlement? Publishing it on the website risks having a major impact on the company: its reputation, and possibly worse, its continuity, are at risk.
Initiating traditional proceedings before the labor court will not provide a solution because it takes too long and the damage will continue to accumulate as long as the withholding obligation applies.
It is for this reason that a construction company that strongly disagreed with a settlement from the RSZ (National Social Security Office) appealed to the interim relief judge. They requested the presiding judge to remove the company from its website as a debtor pending a ruling on the merits. This was successful: in no uncertain terms, the interim relief judge ruled that publication on a publicly accessible website is only permitted if the social debt is established and due. In all other cases, publication causes reputational and commercial damage. The debt was not established. The RSZ was ordered, under penalty of a €1,000 penalty per day of delay, to remove the publication from its website as an entrepreneur with social debts, pending a final ruling on the merits.
The decision is final.
Steven Renette, lawyer-partner
steven.renette@mploy.be
2 Case law – wrongful termination and manifestly unreasonable dismissal
Antwerp Arbrb, Turnhout department, March 27, 2023
The judge rules that the employer can still rectify an incorrect notification of the notice period.
The court declares the claim for compensation of 17 weeks' salary due to manifestly unreasonable dismissal well-founded to the extent of 3 weeks.
After an investigation into the operations of the department where E. worked, G., a company operating as a brand representative in the garage sector, terminated his employment contract. On August 30, 2019, the company issued him a termination letter with a notice period of 7 months and 18 weeks. E. signed the letter for receipt. On September 19, 2019, the company sent him an outplacement offer by registered mail, confirming its decision to terminate the employment contract with a "notice period of 7 months and 18 weeks, commencing on September 2, 2019.".
E. claimed, among other things, a severance payment of 7 months and 18 weeks due to the invalidity of the termination notice in the letter given to him on August 30th. He also claimed compensation equal to 17 weeks for manifestly unfair dismissal.
The judge ruled that the termination on August 30th was indeed null and void upon delivery of the termination letter, but established that the registered letter of September 19th did contain a valid notice of termination, although the notice period could only begin on September 23rd, 2019.
E. was therefore awarded a severance payment equal to 3 weeks' salary.
Regarding manifestly unreasonable dismissal, the court, referring to Collective Bargaining Agreement No. 109 of the National Labor Council, establishes that the employer is largely free to decide what is reasonable. The court then refers to the text of Collective Bargaining Agreement No. 109 and, in accordance with prevailing case law and legal doctrine, considers: "Even if the dismissal is given for a reason unrelated to the employee's suitability or behavior, nor is it based on the company's needs, the dismissal will nevertheless not be manifestly unreasonable, as long as it is not also proven that a normal and reasonable employer would never have made the same dismissal decision."
The employer referred to an external consultant's review of the bodywork department, which revealed that colleagues considered him a delaying factor. E. argued that the file did not indicate any deficiencies in his performance, let alone that it would indicate that his dismissal was necessary.
The judgment does not indicate whether E. had requested a reason for the dismissal. If he had not, he must, under collective bargaining agreement no. 109, "provide evidence of elements that point to the manifestly unreasonable nature of the dismissal.".
The court does not address this and implicitly places the burden of proof and the burden of proof entirely on the employer. The reference to the external consultant's report is unconvincing. The consultant is unfamiliar with the employees' approach and working methods. The review is merely a snapshot, while E. "had a flawless career of 13 years." The company fails to prove that it had previously held E. accountable for his performance.
Conclusion of the court: a normal and reasonable employer would never have resorted to dismissal.
The judgment reveals that the company had offered to have witnesses sworn in to confirm E.'s performance issues. The court rejected that offer without any justification.
Regarding the claimed compensation equal to 17 weeks' wages, the maximum stipulated in collective bargaining agreement no. 109, the court considers that it is up to the employee to demonstrate that the degree of manifest unreasonableness justifies compensation higher than the minimum of 3 weeks. Because E. fails to do so, the compensation remains limited to 3 weeks' wages.
ludo.vermeulen@mploy.be
3 Thinking about dismissal
Thinking about dismissal can be expensive for the employer.
Most employers know they must be cautious when dismissing an employee who is taking a career break. This includes maternity leave, care leave, parental leave, and thematic leave. The law stipulates when dismissal protection begins and ends. If dismissal protection is violated, the employer risks having to pay compensation equivalent to six months' salary.
It often happened that an employer decided to dismiss an employee during the interruption period, but that the dismissal was then given after the end of the protection period.
This has been prohibited since a law of October 7, 2022. This law stipulates that even in the event of dismissal after the end of the protected period, the protective compensation is due if "any preparation was made during that period.".
The preparatory work of the law provides an example of "some preparation" as finding and providing a permanent replacement for the employee in question, for example, by publishing a vacancy for a permanent position. The law also explicitly states that the decision to dismiss itself falls under the definition of "making any preparations.".
In short: the employer who decides during the protected period to dismiss the employee at the end of that period risks the payment of a protection compensation.
Employers who believe the employee can never prove the dismissal decision was made before the end of the protection period will still need to be on their guard. There are known cases where social inspectors, as part of an investigation into discrimination, have taken very far-reaching investigative steps. For example, a search was conducted in an HR manager's mailbox for internal emails regarding the dismissal and email correspondence with the social secretariat, including the request for severance pay calculation and the cost of dismissal. (We will not discuss the validity of such a search here; the reality is that such searches have occurred.)
The title of this post is a bit misleading. Thinking about dismissal is indeed still permissible. Unless that thinking leads to the decision to dismiss.