Newsletter // September 22

1 Rush Hour HR – October 11, 2022 – 8:45 am – 4Wings Westerlo

The next edition will take place on October 11, 2022

The program:

7:45 am Reception and breakfast

8:30               am The Labor Deal. Working full-time on fewer days?

Dirk Wijns – senior consultant Mploy social law lawyers

• State of affairs, rights and obligations of the employer and employee.

9:00 Hot autumn, cold winter

Chris Verleye – managing director Salar

• Options to organize work flexibly. An update on temporary unemployment, overwork and multiple dismissals.

9:35 AM Break

10:00 AM Inflation, index, wage increase…

Chris Verleye – managing director Salar

• How does that work? What are the forecasts?

10:30 am Current affairs

Roy Melis – lawyer Mploy social law lawyers

• Saturday is no longer a working day.
• doctor's certificate for one day: definitively abolished or not?
• classification of cost reimbursements.
• GDPR: the GBA has already issued significant fines.

11:00 AM End

You can here .

If there is any news at the last moment about measures regarding the energy crisis, this will of course also be discussed.

 

2 Office news

Following the Borealis case, an opinion piece by Steven Renette and Ludo Vermeulen De Tijd

You can read the piece here .

In a Fact Check: “Yes, German accounting firm prefers unvaccinated applicants”, published on August 11, 2022, Ludo Vermeulen spoke extensively . You can read the article here .

 

3 Case law - violation of corona rules constitutes urgent reason

Liège Labor Court March 3, 2022

The employee who does not report a Covid19 high-risk contact to his employer and does not comply with the resulting quarantine and other obligations will rightly be dismissed for urgent reasons.

Resume:

An employee employed by a nursing home performed a number of diverse tasks during which he regularly came into contact with the residents and other employees. In his private time, in the midst of the corona crisis, he has a high-risk contact at his football club, who notifies him by text message on September 15, 2020 and asks him to be tested as soon as possible. The next day he shows that text message to colleagues at work and adds that he will not have a COVID-19 test performed and that he will not go into quarantine. When colleagues point out to him that this attitude is unacceptable, he responds by saying that he will not inform management because he had already had to go into quarantine and had suffered a loss of income. The management comes to the attention of this very quickly. He points out that he should not have come to work, after which he says that next time he will not tell anyone and will go home. A day later he personally delivers a medical certificate in which his GP confirms that he will be incapacitated for work from September 16 to 18.

The management of the nursing home dismissed him for urgent reason on September 19, 2020 because of all those facts.

The employee is claiming compensation in lieu of notice, compensation for manifestly unreasonable dismissal and compensation for abuse of dismissal law.

The court accepts the urgent reason and rejects all claims.

Even if the rules, including the quarantine obligation, were not included in the work regulations or in a general service announcement, every citizen should still know and comply with those rules. The judgment underlines the importance of these obligations by referring to the fact that 6 residents and the director of the nursing home died during the first wave as a result of a corona infection. The employee put his financial interests above the health of residents and colleagues.

The employee's attitude immediately and definitively broke any trust that the employer should be able to place in the employee.

Concerns:

The judgment shows that the employee was obliged to stay away from work in the given circumstances. This of course also entails the obligation to justify his absence. He had to do this on the basis of a quarantine certificate. The employer could then use that certificate to note when the employee was allowed to return to the workplace. The employer therefore had to report temporary unemployment due to force majeure to the NEO for the employee concerned.

This all comes down to the processing of personal data, so that the GDPR (also known as the GDPR) applies to it. The employer needs a legitimate reason, a “legal basis”, for this processing. Because it concerns sensitive personal data, namely health data, the legal basis must be found in Article 9.2 GDPR. The legal basis for processing data relating to the quarantine may be that the processing is necessary to respect the obligations and rights of the data subject in the field of labor law and social security law. These rights and obligations are included in Article 10, third paragraph, Special Powers Decree No. 37 of June 24, 2020. It stipulates that the employee must provide the employer with a quarantine certificate to justify his absence. In this certificate, the doctor confirms that the employee is fit for work and that he must remain in quarantine for the specified period and therefore cannot come to work.

The employer may only process the data from a quarantine certificate. Strictly speaking and according to the view of the Data Protection Authority, the employer may not, for example, record and process an employee's communication that he has had a high-risk contact.

Ludo Vermeulen, lawyer-partner
ludo.vermeulen@mploy.be

 

4 Case law – overtime and burden of proof – state of affairs

An employee argues that he worked overtime, but that he was not compensated for this. The employer denies that the employee has worked extra hours. Who should provide the evidence in that situation?

In a judgment of 19 May 2019, the Court of Justice pointed out the need for the registration of employees' working hours. According to the Court, the EU Member States must impose an obligation on employers to provide an objective and reliable system of registration of work.

In Belgium there is currently no legal obligation for the employer to record working hours, which means that overtime is not always registered.

In its judgment of 22 May 2020, the Brussels Labor Court refers to the case law of the Court of Justice and the obligation for the employer to register the daily working hours of each employee. If such a system is lacking, this will result in a shifting of the burden of proof, according to the labor court. It is then up to the employer to demonstrate which working hours were performed, at least to prove that the hours for which the employee is still claiming payment were not performed.

You would think that would be the end of the matter.

However, recent case law has ruled completely differently than the Brussels Labor Court. For example, the labor court in Tongeren, in a judgment dated April 7, 2022, is of the opinion that the judge cannot derive any consequences in terms of burden of proof from the presence or absence of a registration system. If the judge were to do this, she would be taking the place of the legislator, which is therefore not possible.

Who bears the burden of proof?

The judiciary adheres to the common law rules regarding the burden of proof, as provided for in Article 8.4 of the New Civil Code. Anyone who believes he can hold someone accountable must prove the facts on which this is based. He who claims to be liberated must also prove this. Finally, all parties (i.e. both the employee and the employer) must cooperate in providing evidence. The judgment of the Brussels Labor Court in its judgment of November 17, 2021 also goes in this direction. The judgment of May 22, 2020 appears to be the exception to the rule in case law.

Until further notice, it is and remains up to the employee to prove unpaid overtime.

For the record: these rules apply to full-time employees. Part-time employees will always have to register any deviations from their work schedule in a deviation register. This is not necessary if there is an adequate digital registration system.

 

Merel Van de Voorde, lawyer
merel.vandevoorde@mploy.be