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Termination

Notice
Are employers required to give notice of termination?

On termination, employees are entitled to a notice period calculated according to their length of service within the company. Unless the employer and employee have agreed otherwise in the employment contract, notice periods are calculated as follows:

  • less than five years of employment – two months;
  • between five and 10 years of employment – four months; and
  • over 10 years of employment – six months.

Employees dismissed for gross misconduct are not granted a notice period.

Redundancies
What are the rules that govern redundancy procedures?

Employment contracts entered into on an open-ended basis may be terminated with or without notice. In both cases, the employer must notify the employee of his or her termination by way of a registered letter or by providing the employee with a dismissal letter after having sought proof of receipt thereof. If the termination (with immediate effect) is due to gross misconduct, the dismissal letter must include the specific reasons for termination.

Dismissal with notice
The reasons for dismissal with notice must be supported by demonstrable and explicit facts, including reasons in relation to:

  • the employee’s aptitude;
  • the employee’s conduct; or
  • the operating needs of the business, establishment or department.

If requested by the employee within one month of receiving notice of dismissal, the employer must provide him or her with a motivation letter which clearly and precisely specifies the reasons for termination. The employer must send this justification letter by registered letter within one month of the employee’s request. If an employer fails to provide an employee with its grounds for dismissal within the legal timeframe, the dismissal will be deemed unfair and the employee may be entitled to compensation for damages.

Dismissal without notice
Dismissal without notice is possible in the event of gross misconduct by the employee. Gross misconduct is considered as conduct that immediately and definitively makes it impossible to continue the working relationship. The appraisal of this notion is purely factual and rests with the courts, which consider the employee’s professional behaviour, level of education, social situation and any other relevant factors to determine his or her responsibility.

Before notifying an employee of his or her dismissal due to gross misconduct, the employer may temporarily suspend the employee, with immediate effect and without any particular form. Until the employer provides notification of the dismissal, wages must be maintained.

Are there particular rules for collective redundancies/mass layoffs?

The statutory procedure regarding collective dismissals applies as soon as an employer intends to dismiss at least seven employees within a 30-day period or 15 employees within a 90-day period.

The provisions on collective redundancies apply to dismissals not related to employees, but rather for economic reasons.

The statutory procedure requires that a redundancy scheme be negotiated and established with staff representatives. The redundancy scheme must contain certain elements and conditions and specify the minimum compensation to be paid to the employees being made redundant. The Labour Code provides for longer notice periods in the case of collective redundancies. Notifications of dismissal can be made once an agreement has been reached between the parties and the redundancy scheme has been signed.

Protections
What protections do employees have on dismissal?

If the employee disagrees with the grounds for dismissal, he or she can bring an action in court against his or her former employer in order to claim material and moral damages on the basis of wrongful or unfair dismissal. The legal proceedings must be initiated within three months of the date on which the reasons for dismissal were notified to the employee. This period can be extended to one year if, during the three-month period, the employee challenges the reasons provided by the employer in support of termination by registered letter.

The appraisal of the seriousness of the reasons for dismissal rests exclusively with the courts.

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