The justification of the dismissal and the exception for the construction sector

On 1 April 2014, CLA no. 109 on the justification of dismissals has entered into effect. Henceforth employees can demand that their employer give the specific grounds for their dismissal. The CLA also provides for a new system of compensation in the event of manifestly unreasonable dismissal.   Justification only at the employee´s request   The employer does not have to justify the dismissal on his own initiative. The employee must himself request the grounds for his dismissal by registered letter, and this within 2 months after the end of the employment contract. In the event of dismissal with an advance notice period to be worked, the request to the employer must be sent within 6 months after the notification of the advance notice period, with a maximum of 2 months after the end of the employment contract.   The employer then has 2 months in order to communicate by registered letter the concrete grounds for the dismissal to the employee. If he fails to do so, he will owe to the employee a fine of 2 weeks´ salary, unless he already had justified the dismissal at his own initiative.   The dismissal justification duty does not apply: - during the first 6 months of employment; - for temporary workers and students; - in the event of bridge pension, pension, discontinuation of the activity, closure, collective or multiple dismissal; - sectoral dismissal procedure.  Manifestly unreasonable dismissal   The employee can claim a compensation when his dismissal is “manifestly unreasonable”.   A dismissal is manifestly unreasonable: - when it is based on grounds that bear no relation to the suitability or the behaviour of the employee or the necessities of the company;  - and when no normal and reasonable employer would ever have made such a decision.   Moreover, in making his finding, the judge may not put himself in the place of the employer. He may only review the manifest unreasonableness, not the opportuneness of the employer´s policy.   If the dismissal is found by the judge to be manifestly unreasonable, then the employee could claim damages amounting to at least 3 and at most 17 weeks of salary, depending on the degree of manifest unreasonableness of the dismissal.   Burden of proof   In contrast to the old arrangement concerning unfair dismissal, the burden of proof regarding the grounds for dismissal or the manifest unreasonableness does not rest entirely on the employer. A system of shared burden of proof applies as follows:   - When the employer has justified the dismissal, each party who adduces something will bear the burden of proving it. - When the employer has not justified the dismissal, despite the employee´s request, the employer will have to furnish the proof of the invoked grounds for dismissal; - When the employee has not asked for the grounds for his dismissal, he will have to prove the manifest unreasonableness himself.  Not for the construction sector!   However, the arrangement described above does not apply for employees for whom, within the framework of the new unified status, structural or temporarily shortened notice periods for dismissal apply. This is the case for a number of specific sectors, including Joint Committee 124 for the construction industry.   For these workers, an arbitrary dismissal arrangement applies that is entirely based on the old arrangement concerning unfair dismissal (old art. 63 of the Employment Contracts Act). A dismissal is arbitrary when it is based on grounds that have no relation to the suitability or the behaviour of the employee or which do not rest on necessities relating to the functioning of the company. There is no additional review provided for the “manifest unreasonableness”, although one can ask whether the Court of Cassation’s existing case-law concerning art. 63 of the Employment Contracts  Act cannot be extended to cover this. The burden of proof regarding the grounds for dismissal rests entirely on the employer. If the dismissal is found to be arbitrary, a compensation equivalent to 6 months´ salary is owed.