Dismissal of a staff representative

Verified 03 September 2024 - Directorate for Legal and Administrative Information (Prime Minister)

The employee with representative functions in the company benefit special protection against dismissalYeah, we say he's protected employee. In addition to the usual procedure which differs according to the reason, the dismissal is subject to the prior authorization of the labor inspector. What procedure should the employer follow? We present you with the information you need to know.

Step-by-step approach

An employer who intends to dismiss a staff representative, who is a protected employee, must summon him for an interview prior to dismissal.

Employee summons

This summons shall be made by letter RAR: titleContent or by hand delivered letter against dump.

The letter of invitation shall state the following:

  • Purpose of the interview between the employee and the employer (or any person belonging to the company with delegation of authority)
  • Date, time and location of the interview (workplace or company headquarters)
  • Possibility for the employee to receive assistance during the interview by an employee belonging to the company (employee or non-employee representative).

Time between the sending of the invitation and the pre-interview

The employer must meet a deadline minimum of 5 working days between submission of the letter RAR: titleContent or his hand-delivery against dump and the date of the interview.

Day of the 1stre presentation or delivery of the letter to the employee and the day of the interview do not count within the 5 working days.

Example :

An employee works from Monday to Friday and has his weekly rest on Sunday. There are no public holidays in the week.

If the 1re presentation of the letter shall take place on tuesday, the interview may take place at the earliest on Tuesday of the following week. Since Saturday is a working day, it counts within the 5-day period.

If the time limit ends one saturday, one sunday, one public holiday or unemployed person, it is extended to the next working day (for example, if the deadline ends on Monday 1er may, it ends on tuesday).

Please note

In the event of serious misconduct, the employer may order the precautionary lay-off of the employee. Where such action is taken in respect of a shop steward or a representative of the trade union section, it must be argued and notified the labor inspector within 48 hours of its entry into force.

Conduct of pre-interview

The employer (or his representative) receives the employee and any person who assists him. It shall explain the reasons for the envisaged decision to the Commission and seek its explanations.

Please note

The employee is not obliged to attend the pre-interview. His absence cannot be blamed on him.

The employer may continue the dismissal procedure if the employee is absent on the day of the interview.

Consultation of the ESC: titleContent must take place after the pre-interview.

The procedure varies according to the number of employees in the company:

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Less than 50 employees

The ESC: titleContent does not have to be consulted unless the consultation has been provided for by a collective agreement.

50 or more employees

The employer must consult the ESC: titleContent if the proposed dismissal concerns one of the following staff representatives:

  • Member (holder or alternate) elected to the ESC delegation
  • Trade union representative at the CSE
  • Local representative.

Before any decision is taken, the ESC shall hear the protected employee concerned.

The employee must be summoned to this hearing otherwise the opinion of the ESC is not valid.

The act does not provide for a specific time limit for the convening of meetings. The employer must ensure that the employee has sufficient time to prepare.

After hearing the employee, the ESC deliberates and gives its opinion by secret ballot. The employer does not participate in the ESC vote but the employee concerned may vote if he or she is a member of the ESC.

Where a company does not have an SE, the application for a dismissal authorization is sent directly to the labor inspector after the preliminary interview.

Please note

In the event of the precautionary dismissal of a member of the CSE delegation and a trade union representative at the CSE, the employer must consult the CSE within a period of 10 days from the start of the lay-off.

Application for dismissal authorization

The employer must request permission to dismiss the protected employee from the labor inspector on whose premises the employee is employed.

The request shall be addressed to the Commission within 15 days following the deliberations of the ESC: titleContent by letter RAR: titleContent in 2 copies or via the portal for referral of procedures under the responsibility of the ministry of labor. Where the ESC is to be consulted, the minutes of the ESC meeting shall be attached to the request.

In case of precautionary lay-offHowever, the deadlines vary depending on whether consultation of the ESC is required or not

Consultation of the ESC

The application for authorization to dismiss must be submitted to the labor inspectorate within 48 hours following the ESC's deliberations.

Without consultation of the ESC

The application for authorization to dismiss must be submitted to the labor inspectorate within 8 days from the date of lay-off.

Contradictory investigation

Before making a decision, the inspector must conduct a so-called "adversarial" investigation.

He shall interview the employee and the employer personally and individually. It collects arguments and explanations from everyone.

The employee takes note of all the documents produced by the employer to justify the dismissal.

During the investigation, the employee may, at his request, be assisted by a representative of his trade union.

The labor inspector shall take his decision within 2 months which follow the date of receipt of the application for authorization to dismiss.

After this period and in the absence of a decision by the labor inspector, the dismissal authorization is rejected.

Decision of the labor inspector

The inspector's decision is substantiated and communicated to the following persons by letter RAR: titleContent :

  • Employer
  • Employee
  • Trade union organization of the employee (if he is a trade union representative or delegate).

The continuation of the procedure depends on the decision of the labor inspector:

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Labor inspector refuses dismissal

The employer may not terminate the employee’s employment contract.

The protected employee must be kept in his professional activity and employment under the previous conditions and receive his salary.

Please note

In the case of a precautionary layoff, the measure is canceled and its effects removed. The employee must receive his full salary for the period between the layoff and the decision to refuse.

Labor inspector authorizes dismissal

The employer may then continue the procedure.

Lack of response from labor inspector

The absence of a reply from the labor inspector during 2 months is refusal (implied decision to reject).

The employer may not terminate the employee’s employment contract.

The protected employee must be kept in his professional activity and employment under the previous conditions and receive his salary.

Please note

In the case of a precautionary layoff, the measure is canceled and its effects removed. The employee must receive his full salary for the period between the layoff and the decision to refuse.

After obtaining the authorization of dismissal from the labor inspector, the employer may notify dismissal in accordance with the usual procedure for personal motive or economic motive.

The decision of the labor inspector may be challenged by the employer or the employee, in a two-month period, by:

  • Reporting to the Minister of Labor
  • Appeals dispute before the administrative court on which the company or establishment depends.

They must be trained within 2 months of any of the following:

  • Notification of the explicit decision of the labor inspector
  • Implied decision to reject of the labor inspector resulting from his silence for 2 months.

The appeal shall not be suspensive. The decision of the labor inspector shall apply until the decision of the Minister or the court is rendered.

Thus, if the labor inspector authorizes the dismissal, the employer may order the dismissal, without waiting for the outcome of the employee’s appeal. He takes the risk, however, of having to reinstate the employee if this authorization is canceled.

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