Newsletter 2023 – 09

1 Office news

Mr. Steven Renette wrote an opinion piece on www.jubel.be in which he explains why he believes it is not a good idea to exchange data between port companies and the tax authorities when recruiting port employees. He is responding to the proposal of drugs commissioner Ine Van Wymersch to better screen dock workers in the fight against drug crime.

2 About the dismissal of civil servants in local and provincial authorities

From October 1, 2023, the Flemish decree will come into effect that allows local and provincial authorities to end the employment relationship with a permanently appointed staff member. We reported on this in our 2023–7 newsletter

It was written in the stars. An appeal for annulment has been filed with the Constitutional Court against the decree by the Free Syndicate for Public Service, Local and Regional Authorities of the Flanders Region and others.

To be continued.

3 Case law – the calculation of the termination compensation

Constitutional Court November 9, 2023, no. 148/2023
A ruling by the Court that raises more questions than it answers.

The calculation of a severance payment must be made on the basis of the “current salary”. For the variable part, “the average of the twelve preceding months or, where applicable, the part of those twelve months during which the employee was employed” is taken (Article 39, § 1, third paragraph, Employment Contracts Act).

The French-speaking labor court in Brussels asked the Constitutional Court whether that provision does not violate the principle of equality (and therefore the Constitution) if the employee was unemployed for a long period (5.5 months) in the twelve months before the dismissal due to force majeure as a result of the COVID-19 epidemic.

The Court expressly considers that the court's question is related to the interpretation of the concept of 'current wages' and the method of calculating the termination compensation in the event that the employment contract is completely suspended due to temporary unemployment due to force majeure as a result of COVID-19, from April 2020 until mid-September 2020 (consideration B.4).

The Court then recalls in its judgment that it is up to the “referring court”, in this case the labor court, to interpret the law, “subject to an manifest misreading of it” (consideration B.7). It is indeed not up to the Constitutional Court but to the labor courts and tribunals to interpret the (employment contract) law under the supervision of the Court of Cassation.

Nevertheless, the Court comes to the conclusion that the Brussels Labor Court bases itself on an apparent incorrect interpretation of Article 39, § 1, third paragraph of the Employment Contracts Act. According to the Court, this provision must be read as meaning that the period in which no wages were owed by the employer due to lack of work performance does not count and must therefore be excluded from the 12 months on the basis of which the variable salary is determined for the calculation of the severance payment.

That in itself is a remarkable statement. The consideration that follows is even more so. After all, the Court rules that when calculating the average of the variable part, the 12-month period must be reduced by the 5.5 months of the suspension due to COVID-19 - force majeure. During those 5.5 months, the employee was apparently not “employed”. According to the Court, “in service” means “at work”.

My understanding is that we must take the monthly average of the variable salary for the 6.5 "active" months.

It will be clear that the interpretation that the Court gives to the words “in service” is not obvious. To determine the notice period, we must take into account seniority, i.e. “the period during which the employee has continuously remained employed by the same company” (Article 37/4, second paragraph of the same Employment Contracts Act). No employer would ever consider taking only the last period of continuous employment into account when determining a notice period. In the judgment with the preliminary question, the labor court assumed that the term "in service" in the Employment Contracts Act must always be given the same meaning, namely being bound by an employment contract. The judgment discussed means that this interpretation is apparently wrong.

The considerations in the judgment are so general that they also appear to apply, for example, to a suspension of the employment contract due to incapacity for work.

The ad hoc solution that the Court seems to want to give to the specific case here opens a Pandora's box.

• What should happen if no work has been performed at all in the 12 months before dismissal?
• During holidays, the employee is also not “on duty” in the interpretation of the Constitutional Court. Should those - at least 20 annual leave days - also be neutralized in the calculation?

The highly questionable interpretation of the Court, which is clearly intended to avoid an outcome that is unjust for the employee, is of course the result of the very incomplete and rudimentary way in which the legislator has regulated this issue in Article 39, § 1, third paragraph Employment Contracts Act. The current version of that provision was introduced by the Unitary Statute Act. The parliamentary preparation shows that neither the drafter of the bill nor the House Committee on Social Affairs took into account the possibility that an employment contract may have been suspended in the year before the dismissal.

Ludo Vermeulen, lawyer-partner
ludo.vermeulen@mploy.be