Dismissal at an inopportune juncture
Freedom of Contract
In principle, the employer has freedom of contract. This means that the employer can terminate the employee’s contract at any time, provided that the notice period is respected.
However, it is sometimes difficult or impossible for the employee to find a new job because of his or her personal situation. For this reason, the Code of Obligations provides protection against termination at an inopportune juncture.
Cases of protection
The Code of Obligations offers an exhaustive list of cases of protection against termination at an inopportune juncture. These include pregnancy, military service, illness, accident and, as of July 1st, 2021, the leave to which employees are entitled when their child is seriously ill or injured. It is unlikely that a new employer will hire an employee in such a situation.
Duration of protection
As a general rule, an employee is not protected from termination at an inopportune juncture during the trial period. However, an employer who terminates an employee's employment contract because of his or her pregnancy during the trial period runs the risk that the termination will be characterized as wrongful.
With regard to protection against dismissal in case of incapacity to work, the duration of protection depends mainly on the employee's years of service. Is this also the case for pregnancy or military service?
How do you calculate the duration of protection for an employee who is 50% disabled? Or for an employee whose illness spans two years of service? Is the employee entitled to his or her salary during the entire period of protection?
The consequences of the protection against termination at an inopportune juncture depend mainly on the moment when the case of protection occurs. The dismissal will be null and void or the notice period suspended, depending on the case. The employer will sometimes have to repeat the dismissal after the protection period.
Inability to work limited to one job
In cases of mobbing or sexual harassment, for example, the employee is sometimes unable to return to his or her job but is able to find a new job.
Is the employee protected against termination at an inopportune juncture? No, according to the Federal Court! However, such a dismissal is risky and will probably be qualified as wrongful if the employer did not take adequate measures.
Short-term or insignificant illness
When an employee falls ill during the notice period, the leave is suspended for a certain period of time. The purpose of the suspension is to allow the employee to have a full period of leave to find a new job.
Some situations can be tricky and abusive. What if an employee is sick for two days or on a holiday? Is the leave period extended when the employee has a minor illness such as strep throat?
When an employee becomes ill or pregnant, he or she may not be aware of it immediately. A dismissal can occur during a period of protection, without the employer or the employee being aware of it. This may be the case, for example, if the employee suffers from cancer and is not diagnosed until several months after the end of the employment relationship.
The employee does not lose his or her protection termination at an inopportune juncture. However, the employee's entitlement to wages between the time of termination and the time he or she takes advantage of the protection is limited.
Abuse of rights
Sometimes an employee calls in sick after being terminated. Is this a genuine incapacity to work that extends the notice period or an abuse of rights? What if the medical certificate is retroactive to before the date of dismissal? What measures can the employer take?
If the employer wants to propose unfavorable changes to the employee's employment contract, he or she must go through the modification-leave procedure. The employer must respect the employee's notice period and any protection against termination at an inopportune juncture.
Dismissal after the protection period
After the duration of the protection against dismissal, the employer is in principle free to terminate the contract of his or her employee. The employer must treat this situation with caution, as there is a high risk of abuse if the employee is dismissed after returning from maternity leave or because of illness.
Sabbatical leave is not a ground for protection against termination at an inopportune juncture. However, it will affect the length of the notice period.
Release from Work
Sometimes the employer decides to release the employee from work during the notice period. If the employer subsequently discovers that the leave period has been suspended due to pregnancy or illness, can he or she reverse this decision?
Termination with immediate effect
Termination with immediate effect for just cause is possible at any time, even during a period of protection against termination at an inopportune juncture. The reason for termination must be serious enough that the employer cannot reasonably be expected to continue the employment relationship.
If the immediate termination is unjustified, the employer will have to pay compensation equal to the employee's salary until the end of the notice period. Because of the protection against termination at an inopportune juncture, the financial consequences may be significant.
The protection against termination at an inopportune juncture is reserved for open-ended contracts. Some employers are tempted to offer chain contracts to their employees in order to avoid their obligations in case of illness or pregnancy.
This is an abuse of the law if the employer does not have an objective and justified reason to conclude several fixed-term contracts. The fixed-term contracts will be considered as one permanent contract, with all that this implies.
Transfer of a company
When a company is transferred, the employment contracts automatically pass to the acquirer. How do you calculate an employee's years of service to determine the length of sick leave protection?