In a judgment of 6 June 2016, the Supreme Court ruled on a case brought by a senior employee against a company in the distribution sector which had dismissed her for serious cause. The Supreme Court held that the Employment Contracts Act of 3 July 1978 does not require - or even allow - a proportionality check between the grounds for dismissal and the sanction (i.e. dismissal for serious cause) itself.

An employee in the distribution sector with more than 20 years seniority was caught stealing so-called bonus points valued at EUR 55. The employee did not deny the accusation. Subsequently, the employer dismissed her for serious cause, without notice or compensation in lieu thereof. The employee contested the employer's decision, on the ground that this was the first wrongful act she had committed in her otherwise unblemished career, meaning the sanction of dismissal for serious cause was disproportionately harsh.

The Liège Labour Court of Appeal sided with the employee in its judgment of 12 January 2015: even though the theft of bonus points indeed constituted serious cause, the Court held that the sanction of dismissal was disproportionate to the act that gave rise to the employee's dismissal for serious cause, given the employee's otherwise impeccable record. The company was ordered to pay severance.

The Supreme Court first recalled the general principles laid down in the legislation on dismissal for serious cause (Article 35 of the Employment Contracts Act). Each party to the employment contract has the right to terminate the agreement without notice or compensation in lieu thereof if there is serious cause for doing so. Serious cause is defined in the Employment Contracts Act as a material wrongdoing which renders further professional cooperation between the parties immediately and definitively impossible. Once the employment contract is terminated for serious cause and discussions have risen between the parties, the court can only assess whether the reasons cited for the dismissal indeed constitute serious cause.

The Supreme Court held that once serious cause is established (i.e. a material wrongdoing which renders further professional cooperation between the parties immediately and definitively impossible), requiring a proportionality check between the reasons cited for the dismissal and the sanction itself violates Article 35 of the Employment Contracts Act. Therefore, once theft by the employee constituting serious cause had been proven, the Liège Labour Court of Appeal did not have discretion to find that the sanction, i.e. dismissal for serious cause, was disproportionate. Therefore, the Supreme Court set aside the judgment of the Liège Labour Court of Appeal.

By this decision, the Supreme Court appears to put an end to a certain trend in the case law that required a proportionality check in the event of dismissal for serious cause.

This judgment does not mean, however, that from now on anything goes when it comes to dismissal for serious cause. When determining whether there is serious cause, the courts must still take all aspects of the situation into account (such as the employee's position and seniority, the specific facts of the case, any possible antecedents, career, etc.). However, once the court has determined that the facts in question indeed constitute serious cause, no proportionality check need - or can - be performed.

Supreme Court, 6 June 2016, AR S.15.0067.F