When communication goes wrong

About the employee's fault and the importance of a good dismissal file

Since the entry into force of CLA 109, employees have the right to know the reasons for their dismissal. If an employee does not agree with these reasons, he or she can go to the Labour Court and claim damages on the basis of the so-called manifestly unreasonable dismissal. CLA 109 has led to an increasing number of dismissal disputes.

A dismissal is manifestly unreasonable when it is based on reasons that do not relate to the suitability or the conduct of the employee or that do not relate to the functioning needs of the company, the institution or service and which a normal and reasonable employer would not ever decide on.

In its judgement of 15 October 2018, the Court of Cassation examined an increasingly occurring situation: a communication deficit of an employee with his colleagues. Faced with an employee who was not able to communicate positively and calmly with the members of his team, which resulted in oral and written statements that became increasingly conflicting, the employee felt uneasy and suffered as a result. Thereupon the employer decided to terminate the employment contract.

The Brussels Labour Court ruled that the dismissal was arbitrary[1], given that the employer did not provide evidence that the communication issue was attributable to the employee; other team members used words that were inappropriate, to say the least.

The Court of Cassation does not agree with the Labour Court and clarifies that "related to the suitability or conduct" does not necessarily presuppose a shortcoming, shortfall or fault on the part of the employee. Judging otherwise would mean adding a condition that the law does not provide (now: the CLA).

This affair again illustrates the importance of a well-constructed dismissal file: the employer was right to register the communication issues in written reports. Since the CLA 109 came into force, the importance of a good dismissal file only increased: a forethoughtful employer does well to hold a solid personnel file of his employees. Letters of formal notice, evaluation reports and similar documents can protect the employer from annoying evidence problems in dismissal files.

Source: Court of Cassation 15 October 2018, S.18.0010.F/1.




[1] The case that led to the ruling of the Labour Court and the Supreme Court is still about the legal concept of the "arbitrary dismissal of blue-collar workers". Nevertheless and not for the first time, the Court of Cassation uses the expression "manifestly unfair dismissal" of Collective Labour Agreement 109 , which describes such dismissal in the same way as the arbitrary dismissal, but with the addition "and which a normal and reasonable employer would not ever decide on".

Published in: Legal insights