The requirement for employers to provide justification for an employee’s dismissal, upon request, is not new. It was introduced under Collective Bargaining Agreement (CBA) No. 109 in 2014, but remains a frequent subject of litigation and legal interpretation. Employers are well advised to proceed with caution, as a poorly written justification—or failure to provide one—can result in significant financial consequences.

CBA No. 109: a brief recap

For those less familiar with the framework of CBA No. 109, the following key principles can be useful:

  • Right to Justification: Employees who are dismissed have the right to request the specific reasons for their dismissal.

  • Obligation to Respond: Employers must respond by registered letter within two months of receiving such a request. Failure to do so will result in a lump-sum penalty equivalent to two weeks’ remuneration.

  • Manifestly Unreasonable Dismissals: Where a dismissal is found to be manifestly unreasonable, courts may award damages between three and seventeen weeks’ remuneration. A dismissal is deemed manifestly unreasonable if:

    1. It bears no relation to the employee’s conduct, performance, or the operational needs of the business; and

    2. No normally prudent and reasonable employer would have made the same decision under similar circumstances.

We refer those interested in a more in-depth analysis to the October 2024 insights by our colleague Loïc Timmermans, published to mark the 10-year anniversary of CBA No. 109.

Recent case law on CBA No. 109

Since its introduction, this CBA has continued to give rise to significant case law. Below, we highlight two recent decisions that provide important practical lessons for employers.

I. Successive dismissals require separate justifications

In a recent judgment, the Brussels Labour Court of Appeal examined a case in which an employer had initially given notice to terminate an employee’s contract and subsequently, during the notice period, opted to terminate the contract immediately, with payment in lieu of the remaining notice period.

Following the initial notice, the employee submitted a registered request for the reasons behind the dismissal. The employer failed to respond. Upon the second, immediate termination, the employee submitted a new request for justification. The employer responded, citing economic grounds and referencing the impact of the COVID-19 pandemic.

The court found:

  • A penalty of two weeks’ remuneration was due for failing to respond to the first request.

  • Both the initial dismissal and the subsequent immediate termination constituted separate decisions, each requiring their own justification. Both were found to be manifestly unreasonable.

Contrary to the employer’s position, the Court held that transforming a dismissal with notice into an immediate termination constitutes a distinct legal act, requiring separate reasoning. The Court referred to the National Labour Council’s explanatory report on CBA No. 109 and the Supreme Court’s jurisprudence under Article 63 of the Employment Contracts Act, which governs abusive dismissal. Furthermore, the Court underlined that such a conversion is a significant development for the employee and may well be motivated by factors different from those justifying the original dismissal.

Conclusion: The employer was ordered to pay two separate indemnities for manifestly unreasonable dismissal:

  • 4 weeks’ remuneration in relation to the initial dismissal, due to vague and contradictory justification;

  • 12 weeks’ remuneration for the immediate termination, based on a failure to substantiate the reasons provided.

Key takeaway:

Employers who want to unilaterally convert a dismissal with notice into an immediate dismissal should proceed with caution. Such a decision must be supported by distinct and justifiable grounds. If the employer and employee remain on good terms, it is often preferable to reach a mutual settlement that adjusts the notice period by agreement.

ii. The importance of precision in stating the reasons for dismissal

The above court ruling also reinforces the requirement for employers to provide concrete and detailed reasons for dismissal. Another recent decision from the Brussels Labour Court of Appeal reaffirms this obligation.

In that case, the employer motivated the dismissal as follows:

  • “Leaving your workstation without notification, leaving work tools unattended”

  • “Regularly disputing the instructions and decisions of your direct supervisor”

  • “Lack of respect toward your supervisor and colleagues”

  • “Aggressive and threatening behaviour toward the director, supervisor, and colleagues, both at work and outside working hours, including harassing phone calls”

The Labour Court of Appeal found that these reasons were: “...not situated in time or place, presented without context, and in some instances based on subjective assessments, with the reasons remaining vague and unsubstantiated.”

The employer was consequently ordered to pay 3 weeks’ remuneration for manifestly unreasonable dismissal.

Key takeaway:

Employers must avoid general or abstract justifications. The reasons must be clearly framed, factually specific, and contextualised.