Manifestly unreasonable dismissal, reasons for dismissal and prior hearing for public sector contractual workers
On 29 February 2024, the Federal Parliament adopted the law on the reasons for dismissal and for manifestly unreasonable dismissals of public sector contractual workers. This law will come into force on 1 May 2024. After years of controversy in the case law, it finally establishes a clear legal framework for the application of manifestly unreasonable dismissal to public sector contractual workers. The law also regulates the issue of hearings prior to the dismissal of such workers.
Background
Since 1 April 2014, CLA no. 109, adopted in implementation of the single status act, has provided special rules applicable to private sector employers concerning the reasons for dismissal and manifestly unreasonable dismissal. The single status act provided for similar rules to be adopted for the public sector, but nothing had been passed by Parliament until now.
In order to remedy this shortcoming, the Constitutional Court, in a decision of 30 June 2016, invited the trial courts to apply CLA no. 109 by analogy in the event of the dismissal of a public sector contractual worker, in order to avoid any discrimination between workers in the private sector, who could claim compensation on the grounds of a manifestly unreasonable dismissal, and workers in the public sector, for whom no legal provision provided for this possibility.
A controversy in the case law ensued, with some courts accepting the Supreme Court’s invitation and others refusing to apply CLA no. 109 by analogy.
The law of 29 February 2024 and its scope of application
The legislator finally put an end to this controversy by adopting, on 29 February 2024, the law on the reasons for dismissal and manifestly unreasonable dismissal of contractual workers in the public sector, which will come into force on 1 May 2024.
This law applies to workers under employment contract whose employer does not fall within the scope of the law of 5 December 1968 on collective labour agreements and joint committees. This includes the majority of public employers.
As with CLA no. 109, this law does not apply to workers dismissed during the first six months of employment, during an interim contract, during a student employment contract and from the first day of the month following that in which the worker reaches statutory retirement age. Nor does it apply in the event of dismissal for urgent case where the employer is required to follow a special statutory dismissal procedure.
Prior hearing and communication of reasons for dismissal
Under the new law, an employer intending to dismiss a worker for reasons relating to his/her person or conduct must hear the worker beforehand in order to obtain his/her explanation of the facts and reasons for the intended decision to dismiss. The employer is obliged to communicate these facts and reasons to the worker sufficiently in advance of the hearing to allow the worker to prepare for it or to make written observations. The law gives no further indication as to this deadline. If the employer fails to hold the hearing, he must pay the worker an indemnity equal to two weeks’ remuneration.
If, after hearing the worker, the employer decides to dismiss him or her, it must notify the worker of its decision in writing, stating the specific reasons for the dismissal. Contrary to the provisions of CLA no. 109, the employer is therefore obliged to inform the worker of the reasons for the dismissal at the same time as the decision to dismiss. The worker does not therefore have to request that these reasons be communicated. If the employer fails to inform the worker of the specific reasons for dismissal, he will also be liable to pay an indemnity equal to two weeks’ remuneration.
The law does not specify whether, in the event of non-compliance with the two aforementioned obligations (prior hearing and communication of reasons), the employer is liable for two indemnities equal to two weeks’ remuneration each. In view of the wording of the legal provision, the employer has arguments to support the argument that only one indemnity is due in this case.
Manifestly unreasonable dismissal
The framework for manifestly unreasonable dismissal established by the law is similar to that set out in CLA no. 109.
Thus, a dismissal that is manifestly unreasonable is one that is based on reasons that have no connection with the worker’s aptitude or conduct, or that are not based on the operational requirements of the company, establishment or department, and that would never have been decided by a normal and reasonable employer.
In the event of manifestly unreasonable dismissal, the employer is required to pay the worker an indemnity ranging from 3 to 17 weeks’ remuneration. This indemnity cannot be combined with other indemnities provided for under a special dismissal procedure. Nor can it be combined with any indemnity payable by the employer on termination of the employment contract, with the exception of compensation in lieu of notice, non-competition indemnity, eviction indemnity and additional compensation paid in addition to social benefits. It may, however, be combined with the two-week indemnity payable in the event of failure to comply with the obligation to hold a prior hearing and to communicate the reasons justifying the dismissal.
The worker bears the burden of proving that the dismissal is manifestly unreasonable, unless the employer has failed to inform the worker of the reasons for the dismissal. In the latter case, the onus is on the employer to establish that the dismissal was not manifestly unreasonable.
Key message
From 1 May 2024, when you dismiss a contractual worker, you will need to pay attention to the following obligations:
- If the worker is to be dismissed for reasons relating to his/her person or conduct, you must hear the worker and inform him/her of the reasons for the intended dismissal before the interview, giving the worker sufficient time to prepare his/her defence or to submit his or her comments in writing.
- You must notify the worker of his/her dismissal in writing, stating the specific reasons for this decision.
- Dismissal must be based on reasons relating to the worker’s aptitude, conduct and/or the operational requirements of the company, establishment or department, and must be such as any normal and reasonable employer would decide on.