Hearing of the employee prior to dismissal for serious cause in the private sector. The Constitutional Court confirms the absence of an obligation for the employer.
In its judgment of 27 October 2022, the Constitutional Court confirmed that it is not discriminatory that private sector employers are in principle not obliged to hear an employee before making a decision to dismiss him or her for serious cause.
The Court considers that the difference in treatment between a private sector worker, who does not have to be heard before being dismissed for serious cause, and a statutory employee, who must be heard in accordance with the legal principle of prior hearing, “audi alteram partem”, is reasonably justified.
The facts that resulted in this preliminary question date back to the dismissal for serious cause of an employee by a Belgian private sector company in 2018. The employee contested his dismissal before the French-speaking Labour Tribunal of Brussels. He argued that his former employer committed a fault that caused him to lose the chance to keep his job, because the company did not – prior to the dismissal - hear him about the acts he was accused of and which were the basis for the decision to dismiss him for serious cause.
The Tribunal observed that the Employment Contracts Act of 3 July 1978 does not oblige an employer, who is considering dismissing an employee for serious cause, to hear the employee before making this decision. The Tribunal added that Article 35 of the Employment Contracts Act could nevertheless be interpreted as allowing the employer to hear the worker before dismissing him or her for serious cause. The Tribunal also notes that a person working in the public service in a statutory relationship has the right to be heard prior to dismissal, under the principle of prior hearing.
The Labour Tribunal therefore decided to ask the following preliminary questions to the Constitutional Court:
"1. Does Article 35 of the Employment Contracts Act of 3 July 1978, interpreted as precluding the right of a worker employed in the private sector to be heard prior to his or her dismissal, violate Articles 10 and 11 of the Constitution, whereas this right is guaranteed to statutory employees in accordance with the legal principle of “audi alteram partem”?
2. Does the same article, interpreted as not precluding the right of a private sector worker to be heard prior to dismissal, violate Articles 10 and 11 of the Constitution?”
In its – relatively brief – judgment of 27 October 2022 (no. 137/2022), the Constitutional Court answered the first question in the negative.
The Court considers that the situations of an employee either in the public sector or in the private sector are comparable, since both are confronted, by reason of their behaviour, with a decision which significantly changes their professional life and which could have similar economic and social consequences.
However, the Court emphasises that the legal principle of “audi alteram partem” does not apply to relations between persons governed by private law, but only to public authorities because of their special nature and the duties incumbent on them. The Court refers here to the duty to inform oneself fully before acting and to protect the citizen from the risk of arbitrariness in administrative acts of an individual scope.
The difference in treatment is therefore, in the Court’s view, based on a reasonable justification. Hence, Article 35 of the Employment Contracts Act of 3 July 1978, interpreted as precluding the right of an employee employed in the private sector to be heard prior to his or her dismissal, does not violate Articles 10 and 11 of the Constitution.
In view of the reasoning on the first question, the Court considers that the second question does not require an answer.
Action point
There is no requirement for a private sector employer, who is considering dismissing an employee for serious cause, to hear the employee prior to the decision to dismiss. However, the fact that the legal principle of “audi alteram partem” does not apply to a private sector employer does not imply that the latter cannot, under certain circumstances, be required to hear an employee prior to a possible dismissal for serious cause. Such a hearing is still, if possible, strongly recommended provided that the legal deadlines are respected at all times.