- 06 Feb 2014
This question is best raised beforehand... In 2013, several labour courts found a dismissal, signed by the wrong persons, to be irregular.
A judgment of the Labour Court of Mons of 23 October 2013 ruled very clearly: if the signatory of the dismissal letter is not the governing body of the employer - or the person competent for dismissals in the company - the signatory must be given an explicit mandate. In this light, the Court recalled that, on the one hand a majority shareholder of a company is not a governing body and cannot give such a mandate and, on the other hand, the mandate may be "silent", but must be clear in its power to dismiss.
According to the Court, if the aforementioned conditions are not met the worker can contest the validity of the dismissal, based on this irregularity, this:
- even when the worker hasn't presented himself/herself to work after the dismissal; but
- on condition that he/she invoked this irregularity within a reasonable term - in this case within 12 working days following the dismissal. However, the Supreme Court has decided - on 28 October 2013 - that a worker who signed a settlement agreement relating to the end of his contract without asking any power of attorney from the party who signed the document on behalf on the employer, may not contest this power afterwards, if neither the employer or the signatory contested such power.
Even when the required mandate is absent, a rectification is possible but the Labour Court of Mons has decided that this has to occur within the term of three working days mentioned in article 35 of the Act relating to Employment Contracts. Failure to do so could lead to the employer being condemned to pay the indemnities foreseen by law.
> Action point:
Before dismissing an employee: take care of your delegation of powers
- Check the competence of the author of the delegation (does that party have the power to delegate such and such power?).
- Clearly define the extent of the powers delegated in the mandate, for instance to your Human Resources Director (what is the exact intention? hiring and dismissing all employees?).
- Provide for a substitute mandatory in case the individual who is normally responsible is absent.
After notifying the dismissal: when in doubt, act within the term of three working days (!)
Do not wait for the dismissed worker to contest the dismissal but have the competent body or person explicitly empowered ratify the dismissal as soon as possible and in any case within the term of three working days.