The failure to pay the compensation in lieu of notice is not a criminal offence. The five-year statutory limitation period is not applicable.
On the occasion of its order of 12 March 2018, the Labour Court of Brussels recalled the applicable principles with regard to the statutory limitation vis-a-vis the failure to pay the compensation in lieu of notice.
It is reminded that by virtue of Article 15 of the Law of 3 July 1978 relating to the employment agreement, the actions arising out of the agreement expire one year after the termination thereof. Nevertheless, where the action of the employee is based on the commitment of a criminal offence by the employer, the five-year statutory limitation period provided for in Article 2262bis §1, Para. 2, of the Civil Code will apply. This period begins on the day following the date on which the injured party becomes aware of the damage or its aggravation and of the identity of the person responsible.
The failure to pay the remuneration is a criminal offence which may be subject to an administrative fine from a minimum of €200 to a maximum of €2,000 or a criminal fine from a minimum of €400 to a maximum of €4,000 per employee (Article 162 of the Social Criminal Code).
Is the compensation in lieu of notice covered by this penal provision ? No.
As recalled by the Labour Court of Brussels by referring to the provisions in force before the adoption of the Social Criminal Code and the preparatory work of the latter, the legislator did not have the intention to sanction the non-payment of the compensation in lieu of notice but only the non-payment of remuneration as it is defined by the law of 12 April 1965 on the protection of remuneration.
However, under that law, remuneration constitutes the salary and benefits to which the employee is entitled, to be paid by the employer under their commitment (Article 2). In other words, remuneration is the compensation for work.
According to consistent case law of the Court of Cassation, compensation in lieu of notice does not fall within this concept as it is not a matter of the compensation for work but of the fixed statutory indemnity for the damage suffered by the employee in the event of dismissal without notice and the employee’s claim also arises when the employment agreement ends.
Consequently, the employee must claim from the employer the payment of the compensation in lieu of notice in the year after the termination of the employment and the employer cannot be sentenced to the criminal penalties listed above due to that non-payment.
12 March 2018
2018, p. 296