The social stakeholders concluded Collective Bargaining
Agreement No. 109 regarding the obligation to provide a reason for
dismissal (CAO nr. 109 betreffende de motivering van het
ontslag / CCT N° 109 concernant la motivation du
licenciement) ("CBA 109")
(See, VBB on Business Law, Volume 2014, No. 2, p. 8,available at
www.vbb.com). CBA 109 has applied to most dismissals since 1
April 2014. There are exceptions, such as dismissals during the
first six months of employment; dismissals in an employment
contract for temporary agency work; and dismissals with the view to
opening a legal pension in the framework of a definitive cessation
Pursuant to CBA 109, employees are entitled to be informed in
writing about the reason for their dismissal.
Should Reason for Dismissal Be Included in Termination
CBA 109 does not require the employer to include the reason for
the dismissal in the termination letter (there is a different
procedure in case of a termination for serious cause) and the
employer should only provide the reason for the dismissal at the
request of the employee. Still, an employer is free to include the
reason for the dismissal in the termination letter.
The employee can request the reason for his/her dismissal in a
registered letter within two months after the employment contract
has ended. If the employment contract is terminated with a notice
period, the request must be made within 6 months after the
notification of the notice (day on which the notification takes
effect) and without exceeding the two month period following the
end of the employment contract.
As from the third working day after the sending of the
employee's registered letter, the employer has two months to
provide the reason for dismissal to the employee in a registered
What Should Registered Response Letter Say?
The registered response letter should contain all elements that
allow the employee to know the exact reason(s) for his/her
dismissal. This entails stating the reason(s) in sufficient detail
so that the employee understands why the employment relationship
CBA 109 does not stipulate that the employer should provide
proof of the reasons mentioned in the registered letter. In
practice, the employee sometimes makes such a request, but the
employer is not obliged to comply.
An employer who has already informed the employee of the reason
for his/her dismissal in writing (e.g. in the termination letter)
is not obliged to reply to the registered letter of the employee,
if the information supplied earlier allows the employee to know the
exact reason for his/her dismissal. However, in such a case it is
still recommended to reply to the request and refer to the
Consequences If No Reason Is Provided
If the employer does not provide a reason for the dismissal, the
employee is entitled to two weeks' additional severance pay. In
addition, the employer will bear the burden of proof if the
employee brings a claim for unlawful dismissal before a labour
A dismissal is considered as unlawful if the reason is not based
on the capability or behaviour of the employee or the operational
needs of the employer and the dismissal would not have been carried
out by a normal and reasonable employer.
If a dismissal is considered as unlawful by the labour court, it
will grant an additional severance pay worth between 3 and 17 weeks
The burden of proof is determined as follows:
If the employer provided the reason for dismissal in accordance
with CBA 109, the claimant will bear the burden of proof;
If the employer did not provide the reason for dismissal in
accordance with CBA 109, the employer will bear the burden of
proving that the reason(s) for dismissal was (were) lawful;
If the employee did not request the reason for his/her
dismissal within the framework of CBA 109, the employee will bear
the burden of proving that the dismissal was unlawful.
For blue collar workers without a fixed place of work
(excavation work, road work, construction work, demolition, etc.)
the old rules regarding unfair dismissal remain applicable. This
means that such blue collar workers will be entitled to 6
months' additional severance pay. The burden of proof will lie
with the employer.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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