- 16 Jun 2011
A protected employee can waive his entitlement to the protection indemnity
A (candidate-) employee representative can only be dismissed after following the procedures provided for by the Act of 19 March 1991 (dismissal for serious cause or for economic/technical reasons).
In the event of non-compliance with the procedures, the employee is entitled to a protection indemnity which varies from two to eight years of salary.
Can a (candidate-) employee representative waive his entitlement to the protection indemnity after his dismissal? The question has been the subject of controversy since the entry into force of the Act of 19 March 1991 twenty years ago. However, it appears from the case law following the social elections of 2008 that our five Belgian Labour Courts concur with the position that even though the protection is a matter of public order, the employee may validly waive his entitlement to the protection indemnity after his dismissal, since the legal provisions regarding this indemnity do not have a "public order" nature.
In a recently published decision of 16 May 2011, the Supreme Court has now fully confirmed this position. According to the Supreme Court, the fact that the protection against dismissal is a matter of public order the does not mean that rights resulting from this protection would also become matters of public order, making it impossible for the protected employee to waive his entitlement to these rights. As soon as it is established that the employer has not respected the dismissal procedure and that the employee has not requested his reintegration into the employer's company or this reintegration has been refused by the employer, the entitlement to the protection indemnity is finally acquired and the employee may consequently waive it. This decision is of course important in the framework of negotiated departure deals (e.g. early retirement pension). If a settlement agreement takes into account the conditions set out by the Supreme Court, it will be much more secure in the event of possible challenges ...