Legal framework in the making which will require justification for dismissal of contract workers in the public sector

The government submitted a draft law on justification for dismissal and manifestly unreasonable dismissal of contractual employees in the public sector on 18 January 2024.

Context

The draft law aims to implement the Act of 26 December 2013 on the unified status between blue-collar workers and white-collar employees. This Act removed the provision on wrongful dismissal of blue-collar workers from the Employment Contracts Act (to eliminate this difference between blue-collar works and white-collar employees) and this: 

• For the private sector: from the entry into force of a generally binding collective bargaining agreement concluded in the National Labour Council concerning the employer's justification of dismissal. For dismissals declared or served from 1 April 2014, collective bargaining agreement (CBA) No 109, concluded on 12 February 2014 in the National Labour Council, now provides such a regulation;
• For the public sector: from the entry into force of a comparable regulation. However, no similar regulation is available today. The Constitutional Court therefore ruled in a judgment dated 30 June 2016 that, pending the legislator's decision, it is up to the courts, by applying general contract law, to safeguard the rights of all public sector employees in the event of manifestly unfair dismissal without discrimination, guided by CBA No 109. 

The government is now (10 years later) moving forward with the 18 January 2024 draft law to create a similar regulation for the public sector. Since the courts are now used to applying CBA No 109, it was decided to provide a regulation as close as possible to the rules of collective bargaining agreement No 109, taking into account the specificities of the public sector.

Scope

The rules on grounds for dismissal and manifestly unreasonable dismissal only apply to public sector employees whose employment relationship is governed by the Employment Contracts Act and therefore not to statutory employees in the public sector or to employees in the private sector. 

The scope of CBA No 109 is converted by analogy as far as possible. The regulations therefore do not apply when the workers concerned are dismissed:

1. during the first six months of employment, provided that successive previous fixed-term or temporary employment contracts for the same job with the same employer are taken into account for the calculation of the first six months of employment;
2. during a temporary employment contract;
3. during a contract for student work;
4. to end the employment contract concluded for an indefinite period from the first day of the month following the month in which the employee reaches the statutory retirement age. 

This regulation also does not apply to employees dismissed for serious cause or for whom the employer must follow a special dismissal procedure laid down by law.

Preliminary interview and written notification of the reasons of dismissal

If an employer intends to dismiss an employee for reasons related to them as a person or their conduct, the employer shall invite the employee to be heard beforehand in explaining the facts and reasons for the contemplated dismissal decision. To this end, these facts and reasons should have been communicated by the employer to the employee in advance and the employee should have sufficient time to prepare for the interview or submit written comments. This guarantee to be heard in advance and to be able to comment appropriately, which is also registered in the envisaged regulation, follows from the general principle of good administration audi alteram partem, which applies without distinction to statutory and contractual employees in the public sector.

If the employer decides to dismiss the employee after the preliminary interview, the notice of dismissal must be in writing and state the specific reasons for the dismissal. Thus, unlike under CBA No 109, the employee does not have to request the reasons first.

The written notice must contain the elements that allow the employee to understand the specific reasons for their dismissal.

If the employer fails to provide the employee with a preliminary interview or to communicate the specific reasons that led to the dismissal, the employer is obliged to pay the employee compensation of two weeks' wages. However, the termination of the employment contract remains valid.

Manifestly unreasonable dismissal

By analogy with the rules in CBA No 109, manifestly unreasonable dismissal is the dismissal of an employee hired for an indefinite period of time for reasons unrelated to the employee's suitability or conduct or not based on the necessities of the operation of the company, institution or service and which would never have been decided by a normal and reasonable employer. In the case of manifestly unreasonable dismissal, the employer also has to pay the employee compensation of at least 3 weeks and up to 17 weeks' wages.

The compensation is not cumulative with other compensation provided for under special dismissal procedures (except for the aforementioned compensation of two weeks' wages).

The compensation is also not cumulative with any other compensation owed by the employer following the termination of the employment contract, with the exception of a compensation in lieu of notice, a non-competition payment, an extraction payment, or an additional compensation paid on top of social benefits.

Since CBA No. 109 makes the burden of proof of a manifestly unreasonable dismissal depend on the course of the notification of the specific grounds for dismissal (was a request made by the employee or not), while the notification in the provided regulation must be made by the government in any case, it follows that the burden of proof is governed by the common law of evidence, as provided in Article 870 of the Judicial Code (which stipulates that each party shall prove the facts it alleges), unless the employing government failed to communicate the specific reasons that led to the dismissal. If necessary, the onus is therefore on the employer to present evidence that the dismissal is not manifestly unreasonable.

Reliance Littler will continue to monitor the entry into force of the final text of this draft law. Once in force, this law will undoubtedly bring clarity and uniformity in certain areas (e.g. sanction in case of non-compliance with the obligation to be heard with regard to contract workers); certain other aspects still seem to require further elaboration on the basis of case law (such as the concept of "sufficient time" to prepare the interview). We will stay on top of this developing matter.