Newsletter // December 2022

1 Office news – Mploy is recruiting

Are you passionate about labor and social security law? Would you like to provide guidance to company managers and employees on issues related to (employment) contracts, regulations, dismissal arrangements, wages, social audits, or occupational accidents (to name just a few)?

Mploy is looking to strengthen its offices in Westerlo and Hasselt. Do you have several years of experience as a social law attorney or HR lawyer in the corporate sector and are you ready for a new career?

Do you want to give it 100%, but do you also find a healthy work-life balance, a pleasant working atmosphere and open communication important?

Our door is wide open for you. Send a message (ludo.vermeulen@mploy.be or steven.renette@mploy.be) or contact us by phone (014 54 68 43 – 011 36 09 71). Discretion assured.

2 Jurisprudence – the labor court calls Unia back

Arbh. Antwerp October 4, 2022, www.unia.be

The Labor Court finds that the alleged racist motives for dismissal were instilled in the employee by Unia and rejects his claim for compensation for discrimination.

A cleaner of Moroccan origin, Mr. Y., is fired by his employer after numerous complaints from one of the two clients he had worked for for years. One client was a company, the other a government agency.

In consultation with Unia, the union took Y. to court, claiming six months' salary for discrimination based on ethnicity or religious belief, and compensation for manifestly unfair dismissal. After a very extensive analysis and thorough consideration, the labor court declared both claims unfounded. It first noted that Y. communicated extensively and frequently with his employer by email during his employment and that he never complained about any racist treatment in those emails. He also didn't do so in his initial response after the dismissal. He also didn't report the incident to Unia himself, despite being advised to do so by a certain Ms. R., who was responsible for an organization she described as "a field service of the Flemish government." This field service was the other client of the cleaning company where Y. also worked. It was Ms. R. who informed Unia in a letter one day after the dismissal that the dismissal "in our opinion is based on racism (...). What steps should I take?"

The court concludes that the dismissal was motivated by Y.'s behavior and suitability for the job. Not only were there recurring complaints about the cleaner's work, confirmed in inspection reports and partly acknowledged by Y., but also the fact that several conversations about these complaints escalated due to his verbal aggression. Furthermore, the client repeatedly asked Y.'s employer to intervene.

The court notes that, from the outset, Unia based its analysis on an incomplete file. It states, literally: "The labor court cannot shake the impression that the racist nature of the dismissal was primarily instilled in Mr. Y by UNIA, at the instigation of Ms. R., but that he himself never experienced A's attitude as racist or discriminatory, neither during his employment nor upon his dismissal. The documents documenting his interactions with A show that he was assertive enough to report this if necessary, even while still employed."

This isn't the first time Unia has been reprimanded by the courts, albeit in a different context. In its October 12, 2020, judgment in the Achbita case, the Ghent Labor Court held that it is in no way for a public institution like Unia to impose a philosophy of "active pluralism" on employers and thus determine which corporate image may be considered legitimate.

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

3 Permanent force majeure due to incapacity for work: new regulation

Act of 30 October 2022 containing various provisions regarding incapacity for work (BS 18 November 2022)

Termination of the employment contract due to permanent force majeure caused by the employee's incapacity for work is fully regulated separately in the new Article 34 of the Employment Contracts Act, introduced by the Act of 30 October 2022.

1. Waiting period. To begin with, the procedure for the termination of the agreement can only be initiated after a period of at least 9 months of uninterrupted incapacity for work. A return to work followed by a new period of incapacity for work after less than 14 days is not considered an interruption.

2. Initiative. Both the employer and the employee can initiate the procedure. They must send a registered letter to the occupational health and safety advisor (PAAA). The employer must state, among other things, that the employee can be assisted by a member of the union delegation.

3. Investigation by the PAAA. The Code of Well-being at Work includes a new procedure that the PAAA must follow. During this investigation, the employee indicates in writing whether they wish to have the conditions and modalities of the adapted or other work examined, if applicable. The PAAA must communicate its findings to the employee and the employer by registered letter within three months of notification. If it determines permanent incapacity, the employee has a second opportunity, if they have not already done so, to request an investigation into the conditions and modalities of adapted or other work by registered letter. The PAAA then has 30 calendar days to communicate the results of its investigation.

4. Appeal. An employee who disagrees with the PAAA's determination of their permanent unfitness for the agreed-upon work may appeal within 21 calendar days. This appeal must be sent by registered mail to the competent medical social inspector of the TWW general directorate and to the employer.

5. No result. If the PAAA determination or the outcome of the appeal procedure does not demonstrate that the employee is definitively unable to perform the agreed-upon work, the procedure will end without result. It can only be restarted after a new uninterrupted period of incapacity for work, starting from the day after receipt of the PAAA determination or the outcome of the appeal procedure.

6. Termination of employment contract. The employment contract may only be terminated if it appears from the determination of the PAAA or from the outcome of the appeal proceedings that it is definitively impossible for the employee to perform the agreed work and:

1. the employee has not asked to investigate the possibilities for modified or other work; or

2. the employee has requested that the possibilities for adapted or other work be investigated and the employer has provided the report in which he explains why drawing up a plan for adapted or other work is technically or objectively impossible or cannot reasonably be required for valid reasons, to the employee and to the PAAA; or

3. the employee has asked to investigate the possibilities for modified or other work and the employer has provided the plan for modified or other work that the employee has refused to the employee and to the PAAA.