- 25 May 2010
Can a (candidate) employee representative waive his/her right to a protection indemnity after his/her dismissal? This month the Labour Court of Brussels had to answer this question.
As you know, a (candidate) employee representative can only be dismissed following the procedures provided by the act of 19 March 1991 (dismissal for urgent cause or economic/technical reasons). In case of non-compliance with the procedure, a protection indemnity, ranging from two to eight years of remuneration, has to be paid.
In the past, case law concluded that a protected worker could never validly waive his/her right to this protection indemnity.
In the present case, the protected worker had signed a settlement agreement after the termination of his employment. However, he subsequently claimed the payment of the protection indemnity. Specifically regarding this question, the Labour Court in Brussels confirmed on the one hand that the protection regulation for (candidate-) employee representatives, as provided in the act of 19 March 1991, is of public order. On the other hand, the Labour Court confirmed that the protection indemnity is not of public order.
This means that a protected worker, although he/she cannot waive his/her protection, can however waive their right to the protection indemnity after dismissal and this as of the moment that it is certain that he/she is entitled to the protection indemnity.
After the Labour Court in Ghent in 2003 and the Labour Court in Antwerp in 2007, the Labour Court in Brussels is (at least) the third Labour Court that confirms this position explicitly. As a result, it can be presumed that the controversy on this point will gradually disappear.