Newsletter 2024 – 07

2 Rush Hour HR – October 8, 2024, 4Wings, Westerlo

Have you registered for the new edition of Spitsuur HR yet? As usual, you can expect a delicious breakfast and a wide variety of current topics on HR and social law.

Program

7.45 am Reception and breakfast

8.30 am Liability in employment law, Dirk Heylen

9:00 am Organization of the contracting chain, Roy Melis

9:35 am Break

10:00 AM Better be careful with cafeteria plans, Chris Verleye

10:30 am News and Q&A

11.00 am End

Interested? You can find more information and a registration form here. The participation fee is €50 excluding VAT.

3 Jurisprudence – a company car does not count

Antwerp Labor Court, Hasselt division, January 17, 2024

The benefit in kind of the private use of a company car may not be allocated to the (minimum) wage.

I already raised this issue in Newsletter 2024 – 2.

A dismissed employee claims that the employer  paid her too little from the start of her employment. The employer disputed this and referred to the benefit in kind of the private use of the company car. If that had been taken into account, the employee would have been remunerated in accordance with the salary scale of PC 200.

The court ruled in the employee's favor. Article 6, § 2 of the Wage Protection Act lists what the employer may grant as a benefit in kind. Besides materials, equipment, and tools necessary for the work, and work clothing, these are only housing, gas, electricity, water, heating and fuel, the use of land, and food used at the workplace.

The private use of a company car does not qualify as a benefit in kind and is therefore not included in the calculation of the minimum wage to be paid according to the pay scale.

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

4 Jurisprudence – not taking the host into account

Antwerp Labor Court, Mechelen Division, February 11, 2020, unpublished

The manager of a company that distributes frozen foods noticed that one of the freezer trucks was parked near a café during the shift. He entered the café and found one of his employees with a glass of beer in his hand. He ordered the employee to leave the premises immediately. Later that day, a meeting took place between the employee, the manager, and the employer, during which the employee allegedly admitted the incident. No written record of this was made. The employee was subsequently dismissed for cause, namely consuming alcohol during working hours.

The employee brought the case before the labour court. The employer referred to the findings of the supervisor, but the employee countered that although he was drinking a glass of beer at that moment, it was not alcoholic beer. In this regard, he submits a statement from another patron of the pub (“The person in question was drinking non-alcoholic beer at this moment”) and from someone who was likely the landlord (since the latter states: “Upon returning from the toilet, he ordered a Jupiler NA and started talking to an older man”).

At the time of the incident, the manager had not investigated the nature of the beer in the employee's glass. He likely assumed it was alcoholic beer, but he could not provide proof. According to the labor court, the employer failed to meet its burden of proof. The employee's request for severance pay of 11 months and 5 weeks was therefore granted.

Establishing alcohol and drug use by employees is a difficult task. The facts to be proven are subject to (rapid) change and are by their very nature ephemeral. The employer has limited time and must act decisively. Witness statements prove most appropriate in most cases. The condition, of course, is that the witness describes what they observed as precisely as possible. Otherwise, the employer risks being left with a hangover – as in this case.

Steven Renette, lawyer-partner
steven.renette@mploy.be