Does my employer have to state the reasons for my dismissal?

First question

The first question to ask is whether the dismissal comes with a notice period or not. If it does, the employee has up to six months after the dismissal to ask for the reason for the dismissal, provided that this does not exceed the period of two months after the end of the employment contract. For example, if there is a notice period of 3 months causing the employment contract to end on October 1, the employee may submit this request up to and including December 1.

Does this mean that after that date you can no longer ask for the reason for the dismissal? No, but if the request is sent later, the employer is no longer obliged to respond. The employer is required to communicate the reasons for the dismissal within two months; if they fail to do so, they risk a penalty equal to two weeks’ wages.

Second question

The second question is whether the employee is in an exceptional situation or not. If the dismissal takes place in one of the following situations, the sanction does not apply:

• during the first six months of employment (also taking into account previous and consecutive fixed-term employment contracts or temporary agency work for an identical position with the same employer);
• in the case of temporary agency work or student work;
• with a view to unemployment with company supplement;
• once the legal retirement age has been reached;
• where activities have permanently ceased, the company is closing, or there is a collective dismissal;
• where a special dismissal procedure provided for by law or by collective labour agreement has been followed (for example in cases involving dismissal protection);
• where there is a multiple dismissal as part of a restructuring defined at sector level;
• where the dismissal was given for serious cause.

The situation is more problematic when workers in the public sector are dismissed, since CLA No. 109 does not apply to them. For these workers, there is no legal regulation in this area. The only guidance on this issue is a ruling of the Constitutional Court, which states:
“Pending intervention by the legislator, it is for the courts, applying general contract law, to safeguard without discrimination the rights of all public sector workers in the event of manifestly unreasonable dismissal, and, where appropriate, they may be guided by Collective Labour Agreement No. 109.”

How must my employer state the reasons for the dismissal?

The statement of reasons must set out the concrete reasons that led to the dismissal. In other words, a vague or ambiguous wording is not sufficient. If the employer states, for example, that the employee “did not meet expectations,” this is not clear enough. The reasoning is important because it allows an assessment of whether the dismissal was justified or not.

Manifestly unreasonable dismissal

When the reason for the dismissal is manifestly unreasonable, the employee may take action against the employer. A manifestly unreasonable dismissal is “the dismissal of an employee hired under an open-ended contract, based on reasons unrelated to the employee’s suitability or conduct, or not based on the operational needs of the company, institution, or service, and which would never have been decided upon by a normal and reasonable employer.”

On the one hand, the dismissal must come from the employer and, on the other hand, it must concern an open-ended employment contract. If it concerns an employee or a fixed-term contract, abuse of rights may be invoked where the dismissal would be manifestly unreasonable.

Why is this important? If the court finds that there is a manifestly unreasonable dismissal, the employer will be ordered to pay compensation to the employee. This compensation is at least 3 weeks’ wages and at most 17 weeks’ wages.

Evidence is very important here. If the employer dismisses the employee for inappropriate conduct but cannot prove this sufficiently, it may, for example, be held that the dismissal is manifestly unreasonable. Likewise, if the employer argues that the employee does not meet the job requirements, but this is not apparent from the documents submitted, it may also be concluded that the dismissal is manifestly unreasonable. This will depend on the facts; every case is different. This principle is not absolute, since the employer remains free to develop its own policy within the company.

Dismissal protection

In addition to manifestly unreasonable dismissal, there is another legal reason why an employee may want to ask for the reason for dismissal. Employment law contains many forms of dismissal protection for certain employees in specific situations. Think, for example, of a pregnant employee, who may not be dismissed from the moment the employer has been informed of the pregnancy, an employee taking time credit, a union representative, a prevention advisor, etc.

This right is not absolute, meaning that protected persons can still be dismissed, but only if the dismissal is due to another reason. For example, if a pregnant employee steals money, the employer could decide to dismiss her because of the theft and not because of the pregnancy. If a prevention advisor displays undesirable behaviour in the workplace, this has no connection with their role as prevention advisor, so this may also constitute a valid reason for dismissal.