Social elections | Protection against dismissal

Written on 17 Jun 2019

What kind of protection are we talking about?

There exists a very large protection against dismissal. This means that the protected employees may only be dismissed in the following situations: (i) a dismissal on serious grounds recognized by the labour court or (ii) for an economic or technical reason previously approved by the competent joint committee (e.g. in case of a restructuring).

  • Protection indemnity
    • If the employer dismisses a protected employee without respecting the due procedure, he must, upon the request of the employee, reinstate him or pay him a protection indemnity. If the employee asks for his reinstatement and the employer refuses it, the protection indemnity consists of two parts: a fixed part and a variable part. The fixed part amounts to: 2, 3 or 4 years of salary, depending on the seniority of the employee (less than 10 years, between 10 and 20 years, or more than 20 years). The variable part is equal to the salary for the period between the date of the termination and the end of the mandate of the members of the WC or CPPW.
    • Only the fixed part of the indemnity (two, three or four years of salary, depending on the seniority) must be paid if the employee does not ask for his reinstatement.
    • Social security contributions (+/- 27% of the indemnity) are to be paid on top of the indemnity. The protection indemnity absorbs the indemnity in lieu of notice.

Who is protected against dismissal during the procedure?

  • The protection from dismissal applies to all candidates in the social elections, including those who are not elected, and the actual elected candidates in the WC and/or the CPPW.

When does the protection starts?

  • The protection from dismissal starts in January 2020, even though the lists of candidates have to be submitted to the employer 65 days later, in March 2020. This period of 65 days running from January 2020 and ending in March 2020 (on the date when the lists of candidates is submitted to the employer), is known as the “occult period”. During this period an employer may unknowingly dismiss an employee who stands as a candidate and is therefore protected. Hence caution is required!

And when does it end?

  • The protection period ends on the day the new elected candidates take on their role in the new WC and/or the new CPPW, after the new elections (4 years later). In principle, the newly elected candidates have to take on their role within 45 days of the election day.