Motivating a dismissal and prior hearing in the public sector - Supreme Court decision

On 12 October 2015 the Supreme Court ruled that neither the law of 29 July 1991 on the Formal Motivation of Administrative Acts, nor the General Principles of Good Administration (in particular as concerns prior hearing), are to be applied to the dismissal of a contract worker by a public sector employer.

A contract worker dismissed by a municipality had claimed damages owing to the absence of both the formal motivation of the dismissal and a prior hearing prior to the said dismissal. On appeal, the Labour Appeal Court of Ghent (Section Bruges) had ruled in favour of the worker.

The Supreme Court (mixed chamber) has now overruled the decision of the Appeal Court of Ghent considering that:

the legislative history of the law of 29 July 1991 cited above reveals that the said law does not apply to the dismissal by an administrative authority of a contract worker;

the General Principles of Good Administration (including the requirement to have prior hearing) can not prevent the application of the legal provisions that do not require the employer to hear the worker prior to his/her dismissal under the Law of 3 July 1978 on Employment Contracts.

With this decision, the Supreme Court has put an end to a conflict in the jurisprudence regarding the applicability of the law on Formal Motivation of Administrative Acts as well as the General Principle of Good Administration and the obligation of prior hearing in case of dismissal of a contract worker in the public sector.

A legal uncertainty nonetheless remains for the public sector employers regarding the rules of dismissal since the  applicable  legal provisions on the motivation of dismissals specific to employers of the public sector that were expected following the decision of the Constitutional Court dated 7 July 2011 have not yet been adopted.

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Public sector employers may proceed to a dismissal without having regard to the law on the Formal Motivation of Administrative Acts and the General Principles of Good Administration. Such employers nonetheless remain subject to the obligations applicable by virtue of the Law on Employment Contracts (for example, the motivation of dismissal for serious actionable wrong), the Law of obligations (by virtue of which the right to dismiss must be applied in a prudent and diligent way, excluding all abuse of process) and the internal rules applicable within the concerned institution (for example, the administrative status and the work rules).