In a judgment dated 12 October 2015, the Court of Cassation held that the Act of 29 July 1991 concerning the formal justification of administrative acts ("Act on the Justification of Administrative Acts") and the general principles of good administration, including the hearing obligation, are not applicable when a public employer dismisses a contractual employee. This judgment answers a controversial question which has been the subject of lively debate in case law and among legal scholars for the past few years.

Background

For quite some time, a debate had been going on in case law and among legal scholars on the question of whether the Act on the Justification of Administrative Acts and the general principles of good administration (particularly the hearing obligation) are applicable in the case of dismissal of a contractual employee by a public employer. A predominantly French-speaking movement took the view that this should be answered in the affirmative, and hence that the Act on the Justification of Administrative Acts and the general principles of good administration (particularly the hearing obligation) are applicable in this case, assuming that the dismissal of a contractual employee by a public employer is to be considered as a unilateral administrative act.

Judgment of the Labour Court of Ghent

In the case submitted to the court, the employee was of the opinion that the Act on the Justification of Administrative Acts and the hearing obligation had been violated in the context of his dismissal by the city of Ostend, and he claimed compensation for this. The Ghent Labour Court accepted this argument and ordered the city of Ostend to pay compensation of EUR 2,500.

Judgment of the Court of Cassation of 12 October 2015

The Court of Cassation annulled the judgment of the Ghent Labour Court. The Court argued that it is clear from the preparatory documents that the Act on the Justification of Administrative Acts does not oblige the administrative authority to formally justify the dismissal of an employee. On the other hand, the Employment Contracts Act of 3 July 1978, which applies to the employment situation of contractual employees, does not oblige the employer to hear the employee prior to his dismissal. The general principles of good administration, such as the hearing obligation, cannot affect the application of the Employment Contracts Act. The Court stated that a public-sector employer does not violate any rule by not formally justifying the dismissal of a contractual employee or by not hearing the contractual employee prior to his dismissal.

Implications of the judgment

The Court of Cassation has now brought clarity to the discussion: the Act on the Justification of Administrative Acts and the hearing obligation do not apply to the dismissal of a contractual employee by a public employer.

It is important to note that CLA no. 109 of 12 February 2014 concerning the justification of dismissals only applies to employers falling within the scope of application of the act of 5 December 1968 concerning collective labour agreements and joint committees. Furthermore, as a result of a judgment of the Constitutional Court of 18 December 2014, article 63 of the Employment Contracts Act concerning unfair dismissal of a blue-collar worker no longer applies to contractual blue-collar workers in the public sector. Therefore, there is no obligation for a public employer to formally justify the dismissal of a contractual employee. It is very likely that the legislator will resolve this situation shortly.

It should be noted that the judgment of the Court of Cassation does not result in an unlimited right for public employers to dismiss contractual employees. Public employers are bound by the obligations laid down in the Employment Contracts Act towards their contractual employees. Moreover, in application of article 1134 of the Civil Code concerning the execution of contracts in good faith, public employers cannot abuse their right to dismiss with respect to contractual employees. If the dismissal clearly violates the principle of due care, the contractual employee may claim compensation. However, it is not always easy to prove abuse of the right to dismiss. The employee must provide proof of (i) the existence of a fault, distinct from the violation of the rules governing the dismissal, (ii) specific material or moral damage, distinct from the damage caused by the dismissal itself which is compensated for by the severance pay, and (iii) the causal relation between the fault and the damage. Finally, the applicable internal regulations (personnel rules, work regulations, etc.) must be complied with.