Manifestly unfair dismissal of a white-collar worker: what is the first case law verdict?

30 Oct 2015

Since 1 April 2014 both blue-collar and white-collar workers can ask the employer to motivate their dismissal based on the new law on the single employment status. In the event the dismissal is manifestly unfair, damages equal to between 3 and 17 weeks’ salary are due.

Although the law is relatively new, we are now able to report on one of the first legal precedents in this respect.

In a judgment of 8 October 2015 the Labour Tribunal of Leuven decided on the dismissal of an executive white-collar employee. The employer based the dismissal on the following grounds:

  • frequent (legitimate) absences due to illness having a negative impact on the operation of the company (this fact had been discussed with the employee on several occasions);
  • the performance of the employee did not correspond with the principles of cooperation applicable in the company.  As an executive the employee set a bad example for the other employees;  
  • complaints of clients regarding the employee’s non-commercial attitude, which also became clear in the staff evaluation.

The tribunal ruled that a dismissal on the grounds cited was not  manifestly unfair and this for the following reasons:

  • it is not up to the tribunal to judge the employer’s management choices. The employer remains free to decide on what is reasonable. The tribunal must take into account the various management alternatives to dismissal to be considered by a normal and reasonable employer;
  • the organisation of the company and the working process are mainly focused on economic efficiency and profitability. The employer could reasonably decide that the individual non-profitability of the employee was impacting the economic efficiency and profitability of the company in a negative way. In this decision, the tribunal also pointed out that the employee was the only one carrying out the executive function concerned in the company and was thus not easy to replace.

> Action point: substantiate a decision to dismiss

Make sure that a decision to dismiss can be factually substantiated to avoid that there is a manifestly unfair dismissal.