Indemnity for unfair dismissal of blue-collar workers: the Supreme Court requires more in-depth examination of cases

Article 63 of the Act on Employment Contracts states that, when the termination of the employment contract of a blue-collar worker is not justified by the worker's abilities or behaviour or when it is not based on the company's operational needs, the worker is entitled to a lump-sum indemnity for unfair dismissal.

It has generally been considered that Article 63 compensates blue-collar workers for the fact that their notice periods are shorter than those for white-collar employees.

Up to now, Courts have usually applied this provision strictly and excluded the possibility to consider a dismissal of a blue-collar worker as unfair as soon as the termination of employment was linked to the employee's behaviour, that behaviour being wrongful or not. Generally, Courts have not examined the reasons which have led the employer to terminate the employment contract.

In a recent judgment of 22 November, the Supreme Court decided that a dismissal which is effectively based on the employee's behaviour can still be regarded as unfair if it is clearly unjustified. In fact, the Courts must henceforth examine whether the decision of the employer to terminate the employment contract on the grounds invoked was legitimate or not.

With this judgment, the Supreme Court makes it more difficult for the employer to avoid the payment of an indemnity for unfair dismissal. This judgment requires the Courts to examine more in-depth and review the dismissal decisions of employers where the worker invokes unfair dismissal.
This judgment indicates once again the importance and the necessity for employers to gather and keep sufficient evidence when the employment contract of a blue-collar worker is terminated on grounds of his/her behaviour.

It must be recalled that this judgment does not entail any change to the dismissal rules regarding white-collar employees.