Serious cause and proportionality principle: the end of the controversy?

The intensity of a serious cause cannot be influenced by the prejudice caused to the worker by his dismissal. In this regard, a labour jurisdiction considering that an alleged serious cause is not reasonable compared to the sanction of being dismissed without notice or compensation adds a condition to the legal notion of serious breach as defined in the Law on Employment Contracts.

The Law on employment contracts defines a serious cause as the serious breach which renders the continuation of the professional relationship immediately and definitely impossible. The employment contract is then terminated without notice period or termination indemnity.

In a decision of 6 June 2016, the Supreme Court examined a complaint filed against an order of the Labour Court of Appeal of Liege rendered on 12 January 2016.

It concerned a case where a worker challenged her dismissal for serious breach, and where the Labour Appeal Court of Liege had decided that the worker had committed a serious breach, namely diverting advantages that were intended for the clients of her employer to her own benefit. The court ruled that such serious breach was not reasonable, according to the proportionality principle, in comparison with the sanction of losing her job without notice or compensation.

The cassation complaint stated, among other grievances, that the Labour Court of Appeal of Liege had added a condition to the law by pursuing a proportionality test between the serious breach committed by the worker and the corresponding sanction.

In its judgment dated 6 June 2016, the Supreme Court followed this position and judged that, by linking the assessment of whether it was possible for the employer and the worker to pursue their professional collaboration despite the occurrence of a serious breach (which is the legal criterion of the serious breach) to the criterion of the proportionality between this breach and the loss of employment, the order rendered by the Labour Court of Appeal of Liege violates Article 35 of the Law on Employment Contracts.

> Action point

When assessing the existence of a serious cause, one should examine solely whether or not the relationship of trust is broken, which renders the continuation of the collaboration definitively impossible. Employers should remain cautious as labour tribunals and courts in general do not easily accept the existence of a serious cause.