Accumulating indemnities in the event of the dismissal of an employee representative

The Supreme Court has ruled that the indemnity for protection against dismissal for employee representatives can be cumulated with an indemnity for employment security which is due on the basis of a Collective Bargaining Agreement (CBA) concluded at the level of a branch of industry

Until recently, case law was divided on the question whether these indemnities can be cumulated. The Labour Court of Liège judged in 2009 that such accumulation is possible, whilst in 2011 the Labour Court of Brussels decided the contrary.

On 20 February 2012, the Supreme Court confirmed the judgement of the Labour Court of Liège. The Supreme Court decided that the indemnity for protection against dismissal (Act of 19 March 1991) can be cumulated with the indemnity for employment security, provided for by the CBA concluded in the Joint Committee for insurance companies (JC 306).

The Supreme Court justifies the accumulation as follows:

• the indemnity for protection against dismissal is a sanction which must be granted in the event of the failure to respect the specific procedure which ensures that the dismissal of a protected employee is justified. This sanction safeguards the public interest, i.e. the freedom to execute Trade Union activities;
• the indemnity for employment security is instead granted in the event of the failure to respect the procedure provided for by a CBA concluded at the level of a branch of industry. This indemnity serves to compensate the damage which was caused by the dismissal, and therefore protects the employee's personal interests.

Even though this judgement relates to a specific branch of industry (insurance), it can be applied by analogy to other employment security indemnities which could be applicable on the basis of similar CBAs.