Newsletter 2025 - 03

2 regulations - Attention by deploying temporary workers in the event of a strike

Monday, March 31 there is a National Strike Day (against the policy of the federal government).

In the event of a strike (including in this case of a national strike) it is forbidden to appeal to temporary workers, the CAO No. 108 of the National Labor Council states. The misunderstanding of this prohibition is punished with administrative fines.

Although there are good reasons, including legally, to interpret this prohibition in function of the objective she pursues (it should not be intended to replace temporary employees) fear that temporary employment agencies will be refused to make temporary workers available, even if you are already "regularly" employed by the strike.

Moreover, it cannot be excluded that inspection services, possibly on the instructions of a trade union, visit to determine that you have ignored the prohibition and draw up an official report. Discussions and risks that you can miss.

If you still need that extra employee on 31 March (possibly even to replace the employees who will stop): know that you can give an employee an employment contract of a fixed duration, even for 1 day. However, the administrative hassle will have to take you for granted.

Dirk Wijns, senior consultant
dirk.wijns@mploy.be  

3 case law - (consequences of prohibited posting

Cass. December 23, 2024, S.21.0085.f, www.terralaboris.be

MC is recruited by BV Analysis Jans and immediately made available to NV Verdon from 9 August 2007. This is done with 'Contrats de Mission Temporaire', the latter of which ends on 29 April 2016. The Labor Court finds that this is an infringement of Article 31 of the Act of 24 July 1987 on temporary work, temporary agency work and the provision of personnel. That law stipulates that in such a case, at the start of the posting, an employment contract for an indefinite period of time arises between the employee and the user NV Verdon.

The Labor Court notes that MC was not offered further employment after the last contract on 29 April 2016. Because for the rest, no termination act is supplied by Verdon, the Labor Court rejects the claim of MC to obtain a cancellation allowance.

The Court of Cassation does not agree with that. By not continuing MC further, Verdon unilaterally terminated the employment contract created on 9 August 2007. Another dismissal act is not required.

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

4 Judiciary-An ambiguous e-mail sets the employment of a teacher in loose screws

Appeals Subsidized Free Education, GVO/2024/12/… 15 January 2025

A 30 % fixed teacher was the object of a disciplinary procedure. That was not the first time: in a previous decision, the Chamber of Appeal awarded the teacher a second chance.

In the context of an earlier disciplinary procedure, the director of the teacher sent a message via Smartschool to all staff members. As a result, the teacher's lawyer sent an official e-mail to the lawyer of the school board. The teacher told that the director's communication made a gross violation of his privacy and was clearly aimed at striking him again. The teacher involved retained all rights through his lawyer.

The school board could not appreciate the content of the aforementioned official e-mail and started a disciplinary procedure with regard to the teacher. According to the school board, the accusations against the director were an infringement of the duty to look after the importance of education and of the institutions in which the teacher was employed (art. 9 Decree legal position of staff subsidized education) as well as in the obligation to reverence and regard to the employer. The school board imposed the disciplinary measure of the dismissal.

In the opinion of the Chamber of Appeal, two lectures may be of the official e-mail from the teacher of the teacher:

1. A lecture in which the teacher does not accept hierarchical authority and would make it impossible for collegial and constructive cooperation with his employer. Certainly in view of the second chance that the person concerned had in the Chamber of Appeal in the decision following the earlier disciplinary investigation, that lecture can count on little understanding according to the Chamber of Appeal.
2. An assessment from which it follows that the teacher has indeed learned from his disciplinary past. This time, he did not express his displeasure in a public and inappropriate manner, but rather showed restraint by merely having an email sent from lawyer to lawyer. Although the contextualization in this assessment (“clearly aimed at targeting him again”) is regrettable according to the Board of Appeal, the message is neutral (“reserves all rights in this regard”).

The Chamber of Appeal decides by a narrow majority of 4 members against 3 to destroy the disciplinary measure of the dismissal imposed. Despite the disciplinary past of the teacher, according to the Chamber of Appeal, he still enjoys the suspicion of innocence when a double reading of the official e-mail is possible.

The Board of Appeal seems to indicate that this is the teacher's last chance: “That being said, the Board of Appeal hopes that the staff member is fully aware that the succession of disciplinary proceedings is a situation untenable for neither himself nor his employer. If reintegration into his workplace, which is pending based on the Board's disciplinary decision, is to remain realistic, this will require an effort from both parties. By sending (or having sent) ambiguous emails to a supervisor, the staff member appears to be hindering his own reintegration.”

Hans Van Rompaey, Partner Attorney
hans.vanrompaey@mploy.be