The Act of 19 March 1991 (the "1991 Act") provides that members of the works council and the health and safety committee, as well as non-elected candidates for these bodies, are protected against dismissal for a certain period of time. These employee representatives can only be dismissed for gross misconduct, with the prior approval of the labour court, or for economic or technical reasons recognised by the competent joint committee or the National Labour Council.
As mentioned, this protection against dismissal also extends to non-elected candidates.
Duration of the period of protection
Acting and substitute employee representatives, as well as non-elected candidates participating in the social elections for the first time, are protected against dismissal as from the thirtieth day before the notification date of the elections until the nomination date of candidates for the next elections (i.e., May 2012). Second-time non-elected candidates who were not elected during the previous social elections are protected as from the thirtieth day prior to the notification date of the elections until two years after notification of the election results. First-time non-elected candidates thus benefit from a longer period of protection than second-time non-elected candidates, as indicated in the table here.
As far as non-elected candidates are concerned, one problem with the 1991 Act is that it only refers to the situation of (i) non-elected candidates participating in the social elections for the first time and (ii) second-time non-elected candidates who were not elected during the previous elections either.
One situation not mentioned in the 1991 Act is when an employee has been elected an employee representative but is not re-elected in subsequent social elections. Based on a literal reading of the act, it could be argued that the employee does not benefit from protection against dismissal. Hence, during the second social elections, the longer period of protection would not apply since it is not the employee's first candidature. The employee would also not benefit from the shorter period of protection since she was effectively elected during the previous social elections.
In a decision of 8 December 2008, the Belgian Supreme Court ruled on this interesting topic (Cass. 8 December 2008, S.08.0047.F/1). The Court found that the legislature did not intend to limit the period of protection for non-re-elected members to the shorter period of two years after notification of the election results. According to the Court "first candidature" should be understood to mean the "first candidature which does not result in election".
Therefore, an employee who was elected in the past but is not re-elected during subsequent social elections can nevertheless benefit from the longer period of protection, i.e., until the nomination date of candidates for the next social elections.
In this judgment, the Supreme Court clears up some uncertainty regarding the duration of the period of protection for non-elected candidates.
A number of situations have yet to be dealt with, however, and must still be clarified by the Court.