Leap Forward to Blur the Historical Distinction Between Blue and White Collar Workers: the Unique Status of Worker
The Law of December 26, 2013, concerning the introduction of a unique status between white collar and blue collar workers in terms of notice of termination, "carence-day" and accompanying measures was published in the Official Gazette of December 31, 2013.
The provisions of this law bring forth, as from January 1, 2014, an almost complete overhaul of the rules regarding the termination of employment.
New Rules Concerning the Length of the Notice Period
From now on, fixed notice periods apply to all workers, whether blue collar or white collar. These notice periods are now expressed in weeks and the notice always starts on the Monday following the notification instead of on the first day of the following month.
Transitional rules apply for the purpose of determining the length of the notice period to terminate the employment agreement of a worker who was hired prior to January 1, 2014, and provide a two step calculation:
- First one must determine the length of the notice period in consideration of the seniority acquired up until December 31, 2013, at one month per begun year of seniority for a white collar worker whose salary exceeded 32.254 Euros;
- For the seniority acquired since January 1, 2014, the notice period resulting from the new rules, for example a notice period of two weeks during the first three months, will be added.
The new rules clearly provide that new individual or collective agreements cannot modify the length of the notice period fixed in the law.
For existing agreements concerning the length of the notice periods which provide for longer or shorter periods, the law contains no specific provision. There are however serious arguments to plead for the application of such existing agreements for the determination of the length of the notice period in consideration of the seniority acquired before December 31, 2013, in the abovementioned two step calculation.
Expansion of the Entitlement to Outplacement Services
Since January 1, 2014, employees younger than 45 years of age are now also entitled to the benefit of outplacement services provided they are entitled to a notice period of at least 30 weeks.
Abolition of the Trial Period
With the introduction of the new rules on the determination of the length of the notice period, which results in shorter notice during the first three months, the advantage of the short notice period during the trial period has been abolished. Trial periods which started before January 1, 2014, continue to be valid and enforceable.
Abolition of the “Carence-Day”
The first day of a period of incapacity to work by reason of sickness or an accident not exceeding 14 days was called the “carence-day” for blue collars because it was not remunerated.
In practice, this means that from now on, all workers are entitled to their “guarantee-salary” from the first day of their incapacity to work.
The Collective Bargaining Agreement nr 109 of February 12, 2014, Introducing an Obligation to Motivate the Termination of the Employment Agreement
The Law of December 26, 2013, also provided that the social partners were to conclude a collective bargaining agreement ("CBA") concerning the motivation of a termination of employment and “good HR-policy by termination.”
The resulting CBA will enter into force on April 1, 2014, and apply to all terminations taking place after that date.
The worker will be entitled to know the reasons for his dismissal and request to be informed in writing of said reasons. The worker shall have to send his request by registered mail and up to two months after the termination of his employment agreement. The employer has two months to reply unless he already spontaneously motivated the dismissal.
Failure or refusal by the employer to communicate the reasons for the dismissal is sanctioned with a penalty equal to two weeks' salary.
The communicated motive of dismissal will be reviewed against a new notion of “manifest unreasonable dismissal," that is a dismissal that is not based on reasons relating to the suitability or the attitude of the worker, or that is not based on the necessities of the operations of the enterprise or service and that would never have been decided upon by a normal and reasonable employer.
If the court finds the dismissal manifestly unreasonable, it can condemn the employer to the payment of lump sum damages equal to three weeks' salary up to 17 weeks' salary, depending on the degree of unreasonableness of the dismissal.
The CBA nr 109 also adopts a sort of “split” burden of proof:
- When the employer has motivated the dismissal, each party carries the burden of proof for his allegations;
- When the employer has not spontaneously or correctly motivated the dismissal, he can still prove that the dismissal was not manifestly unreasonable; and
- When the worker has omitted to request communication of the reasons for the dismissal, he will have to prove the elements that indicate the manifest unreasonableness of his dismissal.