In its judgment 84/2018 of 5 July 2018, the Constitutional Court has ruled that the absence of a formal obligation for a public sector employer to justify a non-permanent public staff member's dismissal is not discriminatory. This judgment fills the gaps left by the Constitutional Court's  judgments 86/2017 and 22/2018, which had compared the respective rules regarding dismissal of non-permanent public staff members and permanent public staff members.


Background

Several principles of administrative law apply when a permanent public staff member is dismissed. For instance, formal justification of dismissal is required (in the scope of the Act of 29 July 1991 concerning formal justification of administrative acts), and the general principles of good governance, including the requirement for a prior hearing before dismissal (audi alteram partem), also apply.

Whether these principles are also applicable to non-permanent public staff members remained a hot topic of debate for many years. The Court of Cassation's judgment of 12 October 2015, which had ruled that the aforementioned principles did not apply to non-permanent public staff members, led many to believe the issue had been settled once and for all (see Eubelius Spotlights December 2015). 

However, the Constitutional Court then stepped in. In its judgments 86/2017 and 22/2018 of 6 July 2017 and 22 February 2018 respectively, the Constitutional Court ruled that the absence of any prior hearing was discriminatory when compared to the rules for permanent public staff members (see Eubelius Spotlights September 2017). The first case was set against the background of a conduct-related dismissal, while the second case concerned summary dismissal for serious cause. In both of its judgments the Court had rejected the argument that the relevant provisions of the Employment Agreements Act breached the Constitution, as they do not prevent a prior hearing of the employee as such.

Question submitted for a preliminary ruling

Ever since these judgments were rendered, many legal practitioners had been wondering whether this meant that – like dismissals of permanent public staff members – dismissals of non-permanent staff members would have to be formally justified from now on. The Constitutional Court has answered this legal question in its judgment 84/2018.

The question submitted for a preliminary ruling that the Constitutional Court had to answer was whether the Act of 29 July 1991 was consistent with the principles of equality and non-discrimination. The question seemed to suggest that excluding non-permanent public staff members from the scope of the Act constituted a discrimination issue, as this allegedly meant non-permanent public staff members did not have the opportunity to be provided with the rationale for dismissal, while permanent public staff members in the service of the same public sector employer could ask to be provided with such a rationale. 

The Constitutional Court's judgment

The Constitutional Court has now ruled that there is no discrimination at hand between permanent public staff members and non-permanent public staff members. In its previous two judgments, the Court had ruled that, with respect to the right to be heard in advance, a dismissed public staff member's permanent or non-permanent status does not put him or her in a different position. In the case at hand, however, the Court has ruled differently with respect to the Act of 29 July 1991: in the scope of this Act, permanent public staff members and non-permanent public staff members are in different positions.
 
Indeed, a permanent public staff member's guaranteed status of employment relies on his/her position not being subject to termination except for the justification grounds that are explicitly listed in the public sector employer's charter of permanent employment. This virtually guaranteed employment is the very essence of any permanent public sector position. Consequently, a public sector employer that terminates a permanent public staff member's position must properly indicate the grounds for termination provided for in the charter of permanent employment. In addition, as the permanent public staff member concerned can file a claim for annulment before the Council of State, it is crucial that he/she is promptly provided with the rationale behind the dismissal. Since the statute of limitations for filing such a claim for annulment is set at a very tight 60 calendar days, the permanent public staff member must be made aware of the underlying reasons without delay. A non-permanent staff member finds himself at the other side of the spectrum. The applicable provisions of employment law allow each party to terminate the employment contract unilaterally for any reason. The statute of limitations for a non-permanent public staff member to file a claim before the labour court is set at one calendar year. The non-permanent public staff member can ask to be provided with the rationale for the dismissal within this time frame. 

Last but not least, the Court repeats its statement made in judgment 101/2016 of 30 June 2016. This statement points out that the legislator has still not passed legislation applicable to non-permanent public staff members similar to Collective Labour Agreement no. 109 on justification of dismissal, which applies to private sector employees. Back in 2016, the Court had already ruled that the legislator should act without further delay to protect non-permanent public staff members against manifestly unreasonable dismissals. The Court also reiterates its position that, while awaiting the required legislative framework, the labour courts should guarantee all the rights of non-permanent public staff members in the event of a manifestly unreasonable dismissal. Moreover, they should do so in a way that is free from any kind of discrimination and in accordance with the general principles of civil law. They can take inspiration from CLA no. 109, according to the Court. 

Conclusion

The Constitutional Court's judgment 84/2018 should reassure public sector employers: they are not subject to the stringent rules of the Act of 29 July 1991 when they dismiss a non-permanent public staff member. While awaiting the required legislative framework that should protect non-permanent public staff members' rights, we will closely follow how the labour courts handle claims for manifestly unreasonable dismissal filed by non-permanent public staff members.