Transcript Titel sub

Demystifying dismissals:
lessons learned after 1
year of new dismissal rules
Sophie Maes
Partner Claeys & Engels
26 February 2015
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Why were changes required?
Historical differences between blue-collar workers and
white-collar workers (notice periods, unfair dismissal,
“carenz”-day ...)
7 July 2011: Judgment of Constitutional Court
• Difference in treatment is discriminatory with regard to:
– notice periods
– “carenz”-day
• Until 8 July 2013 to clear away differences in treatment
5 July 2013: Final Compromise Proposal
New Act of 26 December 2013, published on 31
December 2013
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2
New dismissal rules as of 1 January 2014
a)
Dismissal by employer
For employment contracts which have started as of 1
January 2014
Notice/severance indemnity in lieu by employer:
• Fixed
• Only depend on length of service
– First 5 years of length of service: gradual increase of notice period
– As of the 5th year of length of service: 3 weeks per started year of
seniority
– After 20 years of length of service: delayed increase of notice period
• Expressed in weeks
Notice letter/start of the notice period on Monday
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Length of service
• = period during which the employee uninterruptedly remained in
the service of the same undertaking
• At the moment the notice period begins
• Period worked as a temporary worker must be taken into
account:
– if the notice is given by the employer
– identical function
– period of temporary work may not be interrupted for more than
seven days
– recruitment follows a period of temporary work with an interruption
of max. seven days
– max. 1 year
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Length of service
Notice period
< 3 months
2 weeks
between 3 months and < 6 months
4 weeks
between 6 months and < 9 months
6 weeks
between 9 months and < 12 months
7 weeks
between 12 months and < 15 months
8 weeks
between 15 months and < 18 months
9 weeks
between 18 months and < 21 months
10 weeks
between 21 months and < 24 months
11 weeks
between 2 years and < 3 years
12 weeks
between 3 years and < 4 years
13 weeks
between 4 years and < 5 years
15 weeks
as of 5 years
3 weeks per commenced year of LoS
between 20 years and < 21 years
2 weeks per commenced year of LoS
as of 21 years
1 week per commenced year of LoS
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Length of
Notice
service
Length of
Notice
service
Length of
Notice
service
Length of
Notice
service
0-3 mth
2w
5y
18w
16y
51w
27y
69w
3-6 mth
4w
6y
21w
17y
54w
28y
70w
6-9 mth
6w
7y
24w
18y
57w
29y
71w
9-12 mth
7w
8y
27w
19y
60w
30y
72w
12-15 mth
8w
9y
30w
20y
62w
31y
73w
15-18 mth
9w
10y
33w
21y
63w
32y
74w
(+ 1w/y)
18-21 mth
10w
11y
36w
22y
64w
33y
75w
21-24 mth
11w
12y
39w
23y
65w
34y
76w
As of 2y
12w
13y
42w
24y
66w
35y
77w
3y
13w
14y
45w
25y
67w
36y
78 w
4y (+3w/y)
15w
15y
48w
26y
68w
...
...
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Global
130
120
Number of weeks (notice)
110
100
90
80
Compromisvoorstel
Compromise proposal
/ne
CAO
7575
+15%
CBA
+ 15%
70
60
Lagere
bedienden
Lower
employees
50
Hogere
bedienden
(Formule
Claeys)
Highest
employees
(Claeys
formula)
40
30
20
10
0
0
5
10
15
20
25
30
Length of service
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b)
Resignation by employee
½ notice period of notice period for employer
• To be rounded down to the lowest
• Maximum 13 weeks
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Length of service
Notice period
< 3 months
1 week
between 3 months and < 6 months
2 weeks
between 6 months and < 12 months
3 weeks
between 12 months and < 18 months
4 weeks
between 18 months and < 24 months
5 weeks
between 2 years and < 4 years
6 weeks
between 4 years and < 5 years
7 weeks
between 5 years and < 6 years
9 weeks
between 6 years and < 7 years
10 weeks
between 7 years and < 8 years
12 weeks
as of 8 years
13 weeks
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c)
Counter-notice by employee
Same notice period as for employee, but limited to 4 weeks
Length of service
Notice period
< 3 months
1 week
between 3 months and < 6 months
2 weeks
between 6 months en < 1 year
3 weeks
As of 1 year
4 weeks
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d)
Fixed Term Contracts
Retain ability terminate with immediate effect
• Remuneration up to end term
• But max 2x severance in case indefinite duration
Notice/Severance during first half of agreed upon period
• Max 6 months
• Only 1st contract
 Watch out for periods of suspension!
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d)
Fixed Term Contracts
Example 1 : employment contract 8 months
4 months
4 months
• Rule 1: normal notice first half of duration= 4 months
• Rule 2: normal notice first 3 months= 2 weeks and 4th
month= 4 weeks
• Rule 3: dismissal after 4 months → sanction =
remuneration end 8th month with max double normal
notice
– 5th + 6th month= 4 weeks * 2= 8 weeks < 3 / 2 months
– 7th + 8th month: 6 weeks * 2= 12 weeks > up to end
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e)
Dismissal during incapacity
(1) Incapacity following notice by employer
•
•
•
Can terminate
Pay rest term minus period covered guaranteed pay since
start incapacity (during which terminated)
‘Valid reason’?
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e)
Dismissal during incapacity
(2) Deviating rules for fixed-term contracts:
• Less than 3 months and work incapacity of at least
7 days: termination without notice/indemnity
• More than 3 months and work incapacity of at least
6 months: max. 3 months , minus guaranteed
salary
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f)
Exceptions
Deviations by industry CBA?
• Not permitted (even when more favourable for employee)
Deviations at company/individual level?
• Not explicitly forbidden  remain possible, but may not be less
favourable for employee
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f)
Exceptions
Pension age?
• If the employer terminates the employment contract for an
indefinite period as of the first day of the month following the
month in which the employee reaches the legal pension age
• Notice period for employer: normal notice period but with a
maximum of 26 weeks
Unemployment with company allowance scheme
• No reduction, except in case of restructuring (min. 26 weeks)
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f)
Exceptions
In some specific blue-collar industries
• Lower notice periods (2-16 weeks) will apply at least until 31
December 2017
• Permanent exception for blue-collars executing certain activities
on so-called temporary and mobile work places (digging,
groundwork, renovation, ...)
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g)
Severance payment in lieu of notice
Maintaining of concept “current remuneration”
Variable pay: average of last 12 months
Rule of conversion of monthly pay into weekly pay:
Monthly pay x 3 = weekly pay
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Yearly pay
Monthly pay
Weekly pay
Severance pay of 9 weeks
39,675.96 EUR
39,675.96 EUR / 12
3,306.33 EUR
3,306.33 EUR x 3 / 13
763.00 EUR
763.00 EUR x 9
6,867.00 EUR
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g)
No trial periods anymore!!!
New employment contracts starting as of 1 January 2014:
no longer possible to include trial period!
Exceptions
• Students
• Temporary work and temporary agency work
– 3 first working days: automatic trial period
– Each party can terminate employment without notice or indemnity
Effect on ‘non-compete clause’ and ‘schooling clause’ but
what about others (protection prevention counsellor,
dismissal procedures, etc.)
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h)
Solicitation leave
½ day a week
During last 26 weeks of notice period: 1 or 2 x per week,
maximum 1 full working day
In case employee benefits from outplacement: during full
notice period 1 or 2 x per week, maximum 1 full working
day
Part-time employees: pro-rated leave to working regime
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3
Regulation for “old” contracts: dismissal by the
employer
Notice for
seniority on
31.12.2013
Notice for
seniority as
from
1.1.2014
Total notice
Salary
Notice
Notice
 32.254 EUR
gross
3 months per
started period of 5
years of seniority
New dismissal rules, see
table at slide 5
> 32.254 EUR
gross
1 month per
started year of
seniority (minimum
3 months)
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3
Regulation for “old” contracts: dismissal by the
employer
Notice for
seniority on
31.12.2013
Notice for
seniority as
from
1.1.2014
Salary
Notice
Notice
 32.254 EUR
gross
1.5 months if < 5 years of seniority
3 months if 5 years of seniority or
more
New dismissal rules, see
table at slide 8
> 32.254 EUR
 64.508 EUR
gross
1.5 month per started period of 5
years of service (max: 4.5 months)
> 64.508 EUR
gross
1.5 month per started period of 5
years of service (max: 6 months)
Exception: no additional
notice if maximum
notice of 4.5 or 6
months is already
reached in part 1.
Total notice
Maximum
13 weeks
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No panic! We help you out!
To calculate the notice periods to be respected in case of
termination or resignation, see our website
www.préavis.be
www.opzegging.be
www.dismissal.be
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4
Outplacement
Old principle maintains: employees older than 45 are
entitled to outplacement if 1 year of service
General rule becomes: all employees dismissed upon notice
or severance indemnity in lieu of minimum 30 weeks are
entitled to outplacement (irrespective of their age)
Exceptions:
– Employees benefiting from outplacement in the scope of an
employment cell (as a result of a restructuring company)
– Employees dismissed for serious cause
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4
Outplacement
Package of 60 hours outplacement support
In the event of a dismissal with:
• A severance payment:
– Value = 1/12 of annual salary of calendar year preceding dismissal
(min. 1,800 EUR – max. 5,500 EUR) – prorated for part-time workers
– 4 weeks’ salary deducted from severance payment (unless employee
waives outplacement, which is possible until 31/12/2015)
– Offer (registered post!) within 15 calendar days after dismissal
• A notice period:
– Outplacement during solicitation leave
– Offer (registered post!) within 4 weeks after start notice period
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5
Motivation of dismissal (CBA n° 109)
Every blue and white collar employee
With at least six months service
=> Are taken into account:
• previous consecutive fixed-term employment contracts;
• temporary agency employment contracts;
for an equal position with the same employer
As from 1 April 2014
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5
Motivation of dismissal (CBA n° 109)
Exceptions
•
•
•
•
•
Termination of temporary agency employment contracts
Termination of employment contracts for students
Dismissal in view of (early) retirement
Dismissal in the framework of collective dismissal, closure or
termination of the activity, multiple dismissals as defined on
industry branch level
When a specific dismissal procedure, prescribed by law or CBA,
has to be followed (ex. employees protected within the
framework of social elections, special dismissal procedure
provided by CBA, ...)
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5
Motivation of dismissal (CBA n° 109)
After request of the employee
•
•
•
within 2 months following the end of the employment contract
(indemnity)
within 6 months following the notification of the notice period, but
without exceeding 2 months following the effective termination of the
employment contract (notice period)
by registered mail
Possibility, but no obligation for the employer to communicate the
reasons of dismissal at his own initiative (without request)
(!) Obligation for the employer to declare the reason for dismissal
on the so-called “unemployment form” (“C4”)
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5
Motivation of dismissal (CBA n° 109)
Answer of employer





within two months following 3rd day after the request has been sent by
registered mail
by registered mail
must cite the specific reasons
use of correct language
not required if employer already communicated the reasons for dismissal at
his own initiative
Penalty = 2 weeks of salary

if employer does not respond (+ no communication at own initiative)
–
–
Basis of calculation?
No social security contributions ( art. 19, §2, 2° KB 28/11/1969 according to the advice no.
–
Can be cumulated with the indemnity for a manifestly unfair dismissal
1.891 of the NLC)
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5
Motivation of dismissal (CBA n° 109)
Dismissal is manifestly unreasonable
•
•
•
if based on reasons which are not connected to the suitability or
behavior of the employee
and
if not based on the necessities of the organization of the
company, institution or service
and
would never have been approved by a normal and reasonable
employer
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5
Motivation of dismissal (CBA n° 109)
Penalty?
 2 options for employee
(1) Indemnity of 3 to 17 weeks’ salary (<6 months of Art. 63 ECA)
• depending on the degree of the manifest unreasonableness
(2) Indemnity based on actual losses
• Employee must prove:
- fault made by the employer
- losses
- causality between fault and losses
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6
Extra to do’s as a result of the new legislation
Overview of your personnel salary on 31 December 2013
Modification of your template of employment contract:
delete the trial period and modify the non-compete clause
and/or the schooling clause
New clauses on termination: OK, if periods are not
lower than the new legal periods
Modification of your company work rules (reference to
dismissal rules)
Modification of the dismissal letters and settlement
agreements (‘weeks’, ‘months’, ‘calendar days’)
Reasons for dismissal
 case building + settlement agreement
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Contact
Sophie Maes
Partner
[email protected]
T: +32 2 761 46 07
www.claeysengels.be
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