How to revoke the dismissal of a staff representative?

The following people are protected from dismissal:

• the full and alternate members of staff delegations throughout their term of office, the equality officers and the safety officers;
• former members of the delegation during the first six months following the expiry or termination of their duties;
• candidates for representatives during the 3 months following the presentation of their candidacy.

A dismissal or, as the case may be, a summons to a preliminary interview, sent out by an employer to one of these persons shall be considered null and void.

The representative has a period of 15 days from the date of termination to ask the Chief Judge of the Labour Tribunal to declare the dismissal null and void and to order that this employee be kept with the company.

Appeals against the order to intervene shall be brought before the presiding magistrate of the Court of Appeals within 40 days of its notification.

Since 1 January 2016, there are two options available to representatives in the event of dismissal / summons to a preliminary interview:

Annulment proceedings

Within one month of the dismissal, the representative may petition the Chief Judge of the Labour Tribunal, who shall rule urgently and as in summary proceedings, with the parties heard or duly summoned, to declare the dismissal null and void and to order that that an employee’s status be maintained or, where appropriate, that the employee be reinstated.

Alternative: submit a claim for damages

A representative who has not exercised the annulment remedy may ask the Labour Tribunal to pronounce the contract terminated on the date of notification of the dismissal and to order the employer to pay damages, also taking into account the specific damages suffered as a result of the invalid dismissal in relation to the person’s status as a representative enjoying special protection. A representative exercising this option is to be considered involuntarily unemployed from the date of dismissal.

This action must be brought within three months of the notification of the dismissal.

Note: Choosing one of these two claims, annulment or damages, is irreversible.

How can a staff representative obtain temporary unemployment after being dismissed for serious misconduct?

A representative who commits serious misconduct may be laid off and the employer may ask the courts to terminate his employment contract.

If the Labour Tribunal refuses to grant the employer’s request, the layoff is cancelled and its effects removed.

Within eight days of being notified of a layoff or dismissal, the representative may ask the Chief Judge of the Labour Tribunal to grant him continued remuneration pending the final decision on the regular or irregular nature of the layoff or dismissal.

It should also be noted that, if a representative who has been laid off has found a new paid job, the employer may ask the judge to suspend the remuneration.

ATTENTION: The order of the Chief Judge of the Labour Tribunal may be appealed within 40 days of its notification to the Court of Appeal and not the presiding magistrate of the Court of Appeal.

Since 1 January 2016, the law dated 23 July 2015 on the reform of social dialogue has reorganised the protection against dismissal of staff representatives.

The head of a company retains the right to lay off a delegation member who commits a serious fault. This decision must be made in writing and state precisely the fact or facts of which the representative is accused and the circumstances which are likely to lend them the character of serious misconduct.

The fact(s) or fault(s) of which a representative is accused may not be invoked after a period of one month from the date on which the party invoking it became aware of the fact(s) or fault(s), unless the fact(s) or fault(s) has (have) given rise to criminal proceedings.

During the three months following the date of notification, the representative shall keep his salary as well as the allowances and other benefits to which he would have been entitled if his contract had not been terminated. These salaries, allowances and other benefits shall be definitively retained by the representative.

• In the month following the layoff, the representative may ask the Chief Judge of the Labour Tribunal to determine whether to maintain or suspend his salary beyond the three-month period, pending the final resolution of the dispute.
• A representative who does not wish to be retained or, where applicable, to be reinstated, may apply to the Labour Tribunal, within three months of being notified of the lay-off, for a declaration that the contract has been terminated and for an order that the employer pay damages taking into account for specific damage suffered as a result of the termination of the contract in relation to the representative’s status as a representative enjoying special protection.

A representative exercising this option is to be considered involuntarily unemployed.

Choosing one of these two options is irreversible.

• An employer may submit his application for judicial termination of the employment contract to the Labour Tribunal, if necessary by way of a counterclaim, at the latest within one month from the date of notification of the summons to appear before the Chief Judge of the Labour Tribunal.
  • If the Labour Tribunal refuses to grant the request, the effects of the exemption shall cease ipso jure.
  • If the Labour Tribunal grants this request, the termination shall take effect on the date of notification of the layoff.
• If the employer does not initiate this procedure within the time limit, the employee may request the Chief Judge of the Labour Tribunal to order the continuation of the performance of the contract by all parties involved within 15 days of the expiry of the time limit, or, if the employee does not wish remain with the company or to be reinstated, petition the Labour Tribunal to state that the contract has been terminated and that an order be issued that the employer shall pay damages taking into account the specific damage suffered by the termination of the contract in relation to the employee’s status as a representative enjoying special protection. A representative exercising this option is to be considered as involuntarily unemployed.

CSL Publication

Social dialogue in companies

Find more information in our publication downloadable HERE