Newsletter // January 22

Best wishes!

We wish all our readers a healthy and happy 2022. Our newsletters will also bring you a unique selection of HR news in the new year.

1 Rush Hour HR – March 15, 2022 – 7:45 am – 4Wings (Westerlo)

Please note the date in your brand new 2022 diary. You will receive the full program very soon. One of the themes that will be discussed will be 'working with subcontractors' in times of a tight labor market. We all remember the vicissitudes of PostNl.

2 Case law – pay attention to the dismissal of older employees

Antwerp Labor Court, Hasselt department December 17, 2021, not issued

The wrongful application of the shortened notice period in the event of retirement (Article 37/6 of the Employment Contracts Act) may give rise to compensation for age discrimination equal to 6 months' salary.

An employer (hereinafter 'the NV') terminated the employment contract with employee V. with a notice period of 26 weeks. He invoked Article 37/6 of the Employment Contracts Act for this purpose. That article provides for a shortened notice period of a maximum of 26 weeks if the dismissal is given to terminate the employment contract “from the first day of the month following the month in which the employee reaches the statutory retirement age.” The alleged retirement was expressly stated as a reason in the termination letter.

V. was only 62 years old at the time of termination of the employment contract. The employer therefore wrongly applied the shortened notice period. The special period for termination before retirement age only applies if notice is given before reaching the statutory retirement age of 65. That was clearly not the case here.

About two months later, the employer terminated the employment contract with immediate effect. For the budget of the severance payment for the remaining term, the employer again assumed a term of 26 weeks. The NV stated the reason again, albeit this time on the C4: “cancellation due to pension”.

The employee then demanded additional severance compensation calculated on the normal notice period and compensation for age discrimination. After the employee had submitted his claim to the court, the employer still paid the termination compensation. He acknowledged that he had wrongly applied Article 37/6 of the Employment Contracts Act.

However, the employer disputed that V. was dismissed because of his age and cited all kinds of reasons for this. First of all, he argued that he had "merely made use of a legally provided option", referring to Article 37/6 of the Employment Contracts Act and Article 11 of the Anti-Discrimination Act (which stipulates that direct or indirect discrimination on the basis of one of the protected criteria do not constitute prohibited discrimination “when this distinction is imposed by or pursuant to a law.”). He also suggested that V. was fired because of his attitude and behavior. There would have been problems for a long time, regular conflicts and a tense atmosphere.

The Antwerp Labor Court, Hasselt department ruled - in line with the labor court - that there were sufficient elements to suspect discrimination on the grounds of age. A number of documents showed unmistakably that V.'s age had led to the dismissal decision. The court referred to the termination letter and the C4 document. According to the court, these statements left little to the imagination and were facts “that seem to indicate that the unfavorable treatment (dismissal) was motivated by unlawful motives”.

For that reason and in view of Article 28 of the Anti-Discrimination Act, the burden of proof shifted. As a defendant, the employer had to prove that there was no discrimination. After all, V. had “provided facts that may suggest the existence of discrimination on the basis of one of the protected criteria”.

Subsequently, the labor court - just like the labor court - came to the conclusion that the employer does not prove that there was no discrimination.

A mistake, namely the incorrect application of the shortened notice period, provided no justification. The employer could not rely on Article 11 of the Anti-Discrimination Act, because the statutory retirement age was not (yet) an issue.

Finally, the court ruled that the employer did not prove that the alleged reasons (about the misconduct) were the true reasons for dismissal and that the dismissal was not related to V's age. The employer did not provide evidence of V's negative attitude. In all There had never been any written notification during those years, even though he had been employed since 2010. The only evidence, namely an email from almost one year before the dismissal in which V. had called a customer “a pathetic figure”, was insufficient. Witness statements (from managers and colleagues, for example) were not provided.

The employer did not prove the reasons it put forward, so that those reasons did not constitute a legitimate purpose that would make the dismissal non-discriminatory. For this reason, the court awards damages for age discrimination equal to 6 months' wages.

An employer forewarned is worth two. Do not be rash with the shortened notice period (of a maximum of 26 weeks) due to retirement. This special term does not apply in the event of early retirement.

Roy Melis, lawyer
roy.melis@mploy.be

3 Judiciary – the government is liable for bad information

Court of Appeal Antwerp November 30, 2021, not issued

Inadequate information on brochures or the website of a social security institution can have major consequences! Fedris will pay the bill of more than 130,000 euros, on behalf of the Asbestos Fund.

The situation and the claim

When a victim of an occupational disease dies from the consequences of that occupational disease, the Occupational Disease Act provides that the partner is entitled, under certain conditions, to a lifelong annuity equal to 30% of the basic salary. In addition, asbestos victims and their beneficiaries enjoy specific compensation (see Chapter VI of Title IV of the Program Act of 27 December 2006).

The Asbestos Fund is responsible for compensation for asbestos victims and their beneficiaries. This fund is managed by Fedris, the Federal Agency for Occupational Risks, a public social security institution.

In this case, W. died from the effects of mesothelioma, also called asbestos cancer. He first received Fedris's acknowledgment of the existence of the occupational disease. In 2016, he received compensation for a respirator and received two brochures from Fedris: 'My rights as an occupationally ill person' and 'Compensation for rights holders (private sector)'.

Both the brochures and the Fedris website state that the surviving spouse or legal cohabitant receives an annual compensation until his (her) death, equal to 30% of the basic salary of the deceased victim. Based on that information, Mr. W. and Mrs. V. decided to legally live together in order to safeguard each other's rights. The couple had lived together for more than 30 years.

Towards the end of 2017, W. died as a result of the occupational disease. Mrs. V. applied to Fedris for appropriate compensation as the remaining legally cohabiting partner. Fedris rejected the application because the legal requirements were not met. After all, V. had not concluded a notarial agreement with W. at the time in accordance with Article 1478 of the Civil Code, “which obliges both parties to provide mutual assistance and which, even after a possible breach, may have financial consequences” (see Article 120, § 2, 1° Program Act 27 December 2006).

This essential requirement was never stated in the Fedris information brochures, nor on the website. V. and W. therefore 'only' legally lived together and did not go to the notary to conclude such an agreement of mutual assistance.

The judge's decision

W. appealed against the refusal; The procedure was finally concluded before the Court of Appeal in Antwerp.

The court had to rule on Fedris' extra-contractual liability. And the court makes no bones about it. It states that Fedris uses legal terminology in its brochures and website that is manifestly contrary to the legal terminology used in the applicable legislation. According to the court, Fedris was all too aware of this distinction, as the constitutionality of the distinction has been dealt with several times before the Constitutional Court (with Fedris as a party).

The court refers to the provisions of the Charter of the Socially Insured, which imposes an information obligation on Fedris as a social security institution, whereby the institution must prepare and publish regularly updated information with a correct description of the rights and obligations of the socially insured.

The court concludes: “By merely stating that 'legal cohabitants' could be entitled to certain social benefits, Fedris did not act as any normally careful government agency charged with the application of social legislation on occupational diseases and with the management of the Asbestos Fund would have acted. (…) By providing incorrect information, the attentive reader of the information is misled in their perception of the rights existing in the field of occupational diseases.”

The court also considers the causal link between the error and damage to be proven. If W. and V. had been correctly informed about the content of the concept of 'legal cohabitation', the couple would more than likely have concluded not only a declaration of cohabitation, but also the notarial agreement required by Article 1478 of the Dutch Civil Code.

Mrs. W. estimated her damage at a total of EUR 170,192.00 in compensation that she could have received if she had been correctly informed.

Applying the doctrine surrounding the loss of an opportunity, the court concludes that the economic value of the lost opportunity is very large, namely 80% of the lost benefit (136,154.00 euros).

Fedris has therefore been ordered to pay Mrs. V. damages of 136,154.00 euros, plus interest and costs.

Since the ruling, the Fedris brochure and website explicitly state that legal cohabitants are only entitled to an annuity if a cohabitation contract has been concluded within the meaning of Article 1478 of the Dutch Civil Code.

Michiel Verheyen, lawyer
michiel.verheyen@mploy.be