Newsletter 2023 – 09

1 Office news

Mr. Steven Renette wrote an opinion piece on www.jubel.be explaining why he believes it's not a good idea for port companies and the tax authorities to exchange data when hiring port employees. He's responding to Drugs Commissioner Ine Van Wymersch's proposal to better screen dockworkers, among other things, in the fight against drug crime.

2 On the dismissal of civil servants in local and provincial governments

As of October 1, 2023, the Flemish decree is in force allowing local and provincial authorities to terminate 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 of the decree has been filed with the Constitutional Court by the Free Union for Public Service, Local and Regional Authorities of the Flanders Region, and others.

To be continued.

3 Case law – the calculation of the severance payment

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

The calculation of severance pay must be based on the "current salary." For the variable portion, "the average of the twelve preceding months or, as the case may be, the portion of those twelve months during which the employee was employed" is used (Article 39, Section 1, third paragraph, of the Employment Contracts Act).

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

The Court expressly notes that the district court's question relates to the interpretation of the term "current wages" and the method of calculating severance pay in the event that the employment contract is fully suspended due to temporary unemployment due to force majeure as a result of COVID-19, from April 2020 to mid-September 2020 (paragraph B.4).

The Court then recalls in its judgment that it is up to the "referring court," in this case the labor tribunal, to interpret the law, "subject to a manifest misreading" (paragraph B.7). Indeed, it is not up to the Constitutional Court, but rather to the labor tribunals and courts of appeal, under the supervision of the Court of Cassation, to interpret the (employment contract) law.

However, the Court concludes here that the Brussels Labor Court is relying on a manifestly incorrect interpretation of Article 39, Section 1, third paragraph, of the Employment Contracts Act. According to the Court, this provision must be interpreted as meaning that the period during which no wages were owed by the employer due to a lack of work performance does not count and should 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's a remarkable statement in itself. The reasoning that follows is even more so. The Court rules that, when calculating the average of the variable portion, the 12-month period must be reduced by the 5.5 months of suspension due to COVID-19 – force majeure. During those 5.5 months, the employee was apparently not "in service." According to the Court, "in service" therefore means "at work.".

I understand this to mean that we have to take the monthly average of the variable salary for the 6.5 “active” months.

It will be clear that the Court's interpretation of the words "in service" is not straightforward. To determine the notice period, we must consider seniority, being "the period during which the employee has remained continuously employed by the same company" (Article 37/4, paragraph 2, of the same Employment Contracts Act). No employer would even consider considering only the last period of continuous employment when determining a notice period. In its 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 under discussion concludes that this interpretation is clearly incorrect.

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

The ad hoc solution which the Court seems to want to give to this specific case opens a Pandora’s box.

• What should happen if no work has been performed at all in the 12 months prior to dismissal?
• During vacation days, the employee is not "on duty" according to the Constitutional Court's interpretation. Should these vacation days – at least 20 per year – also be neutralized in the calculation?

The Court's highly questionable interpretation, which clearly aims to avoid an unfair outcome for the employee, is obviously the result of the very incomplete and rudimentary way in which the legislature addressed this issue in Article 39, Section 1, third paragraph, of the Employment Contracts Act. The current version of this provision was introduced by the Unified Status Act. The parliamentary preparations show that neither the drafter of the bill nor the Parliamentary Committee on Social Affairs considered the possibility that an employment contract might have been suspended in the year preceding the dismissal.

Ludo Vermeulen, Partner lawyer
ludo.vermeulen@mploy.be