In this issue:
- Which students can conclude a student contract?
- Can an employer invoke new facts and evidence after the dismissal procedure of a protected employee for serious cause has already been initiated?
Which students can conclude a student contract?
The law provides various measures in order to promote student employment.
The act of 3 July 1978 on employment contracts, for example, provides a specific type of student contract in which some mandatory content must be included.
Concluding such a student contract is also financially beneficial to both the employer and the student. For example, the salary of the student employed with a student contract will be subject to reduced social security contributions (instead of the normal social security contributions) if certain conditions are met, such as e.g. a maximum of 475 hours of work per year.
Nevertheless, the act does not provide any exhaustive definition of the ”students” that can conclude such a student contract.
For the time being, "student" is defined in a negative way, meaning that some categories of students are explicitly excluded by royal decree of 14 July 1995.
This royal decree excludes students that have already worked for at least 12 months, that perform unpaid internships in the framework of their study course or that attend evening school or follow a so-called study programmes with a “limited curriculum”.
The latter is not legally defined, however, and became obsolete over the years after subsequent legal reforms.
As such, it shall be decided on a case-by-case basis which student can conclude a student contract. The decisive criteria are usually whether pursuing studies or training is the student’s main activity and whether the student has already worked more than 12 months.
Because of this, until recently it was nearly impossible to conclude student contracts with students that were studying part-time or that were taking a part-time vocational training course (“part-time students”) or that were enrolled in so-called "sandwich courses". These are the increasingly popular study programmes in which students alternate in-school learning (or within an educational setting) with acquiring professional skills at the workplace.
The recent royal decree of 10 July 2017 aims to change this for part-time students and for students that are enrolled in a sandwich course.
This royal decree allows part-time students to conclude student contracts if they are only employed during school holidays.
Further, it also allows students enrolled in a sandwich course to conclude student contracts if all the following conditions are met:
- The study programme shall consist of a theoretical training by an educational institution organized, subsidized or recognized by the government on the one hand and a practical training at the workplace on the other hand
- The students shall exclusively work for another employer than the one where they are taking their practical training at the workplace
- They can work when they do not have to attend courses or trainings or do not have to be present at the workplace where they are taking their practical training
- The students are not receiving any social assistance allowances (unemployment benefits, labour market integration allowance or living wages)
However, even after adopting the aforementioned royal decree, it is still not possible to conclude student contracts with students that have already worked for at least 12 months or that perform unpaid internships in the framework of their study program.
Previously, a (financially beneficial) student contract could in principle only be concluded with a student whose main activity was pursuing studies or training. Due to a recent legal reform, this now also becomes possible for part-time students and for students that are enrolled in a sandwich course, provided some restrictive conditions are met.
Can an employer invoke new facts and evidence after the dismissal procedure of a protected employee for serious cause has already been initiated?
On 22 August 2017, the Ghent labour tribunal had to rule on the possibility of presenting new facts and documents to corroborate the alleged serious cause, after the dismissal procedure of a protected employee for serious cause had already been initiated.
This ruling was prompted by the dismissal of an accountant who ran for candidate for the Committee for Protection and Prevention at work (“CPPW”) during the 2016 social elections. The accountant had been elected ipso jure and, hence, benefited from the protection against dismissal provided by the Act of 19 March 1991.
In January 2017 the company fell victim to fraud and suffered financial damage. The employer then sent a warning to the accountant, pointing out that he would need to abide by the correct payment procedures and instructions in the future. According to the employer, the accountant had omitted to carry out certain checks and had added false statements to the invoices. The accountant was then invited to a meeting in order to provide him with the opportunity to clear this out. The meeting was not very effective and the employer informed the accountant and his trade union about his intention to proceed with dismissal for serious cause. He also petitioned the labour tribunal. After the legally provided negotiation period, the employer stuck to his decision and summoned the accountant and his trade union.
Article 7 of the Act of 19 March 1991 explicitly provides that in the writ of summons no other facts can be invoked than the facts that were mentioned during the notification of the intention to the employee and the trade union. Moreover, during the procedure no other reasons can be presented to the labour tribunal for evaluation.
However, during the procedure the employer invoked new facts of later date than the notification of the intention to dismiss and the summons. Therefore, the accountant asked the tribunal not to take these new facts into account when evaluating the serious cause and to bar the related documents from the debates.
The employment tribunal decided that it does not need to take into account the new facts that were invoked during the procedure and, hence, are of later date than the notification of the intention to dismiss. The tribunal also states that the new facts cannot be invoked as such in order to contribute to the proof of the facts that were initially invoked and that could potentially lead to a dismissal for serious cause.
However, according to the tribunal, the new documents that were invoked during the procedure with regard to the new facts, should not be barred from the debates, since the employer can use any legal means to demonstrate there was an serious cause. Therefore, the employer can also bring documents he considers relevant in order to contribute to the evidence of the possible serious cause. Whether those documents are sufficient to deliver evidence of the invoked serious cause, is subject to the judgment of the tribunal.
The employer who initiated a dismissal procedure of a protected employee for serious cause, cannot invoke new facts during this procedure in order to demonstrate the serious cause. However, the evidence related to these new facts can be used if the employer considers that they contribute to the evidence of the initially invoked facts and the ensuing potential serious cause.
Laurent De Surgeloose