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Dismissal on grounds of personal invalidity, unjustified or improper

Verified 31 July 2020 - Directorate for Legal and Administrative Information (Prime Minister)

When a judge challenges a dismissal on personal grounds, the consequences of his decision vary depending on whether the dismissal was declared void, unjustified or irregular.

Terms

In certain situations, the judge may declare the dismissal void (dismissal annulled).

The cases of nullity provided for by law include dismissals in any of the following situations:

  • Due to discrimination
  • In violation of fundamental freedom (freedom of expression, freedom of association, freedom of religion, right of withdrawal of employee)
  • In connection with the performance of the duties ofjuror or citizen assessor
  • In the event of refusal of a geographical mutation in a State criminalizing homosexuality on grounds of sexual orientation
  • For recounting or testifying, in good faith, of facts constituting offense or crime of which he would have been aware in the course of his duties
  • Against an employee whistleblower
  • In connection with legal proceedings in respect of discrimination
  • Due to legal action on gender equality
  • Against victims or witnesses of harassment moral or sexual (except in bad faith of the employee)
  • Without respecting maternity or paternity protection
  • Without respecting the protection of occupational injury or illness
  • Without respecting the protection granted to certain employees (member of the CSE: titleContent for example
  • Without knowledge of the right to strike
  • Against an employee who has testified to ill-treatment or deprivation inflicted on a person admitted to social and medico-social institutions or services (or who has reported such acts)
  • Without respecting the protection related to the death of a child under 25 years of age
  • Without respecting the death protection of an effective and permanent dependant under the age of 25

Is the employee reinstated in the company?

An employee may apply to be reinstated in his or her employment or in an equivalent employment.

The employer may oppose reinstatement only if it is impossible (for example, the employee has asserted his or her retirement rights or the company's termination of business).

Is the employee compensated?

If the employee is reinstated in the undertaking, he is entitled to payment of an allowance.

This allowance shall be the maximum of the wages which he was deprived of during the period between the termination of the contract and his reinstatement.

If he refuses to be reinstated (or is unable to be reinstated), he shall be entitled to the following allowances:

  • Termination allowances (severance pay, notice compensation and paid leave), if he fulfills the conditions for entitlement
  • Compensation paid by the employer, the amount of which may not be lower than the wages of the last 6 months (this allowance is not capped)

Terms

Dismissal for personal reasons is unjustified (or without real and serious cause) when the reason the dismissal is not recognized by the judge as valid.

Is the employee reinstated in the company?

Reintegration into the company is possible, on the proposal of the judge. The reinstated employee retains the benefits acquired before his dismissal.

Is the employee compensated?

The amount of compensation varies according to the employee's seniority and the number of employees in the company.

If the employee or the employer refuses to reinstate, the judge shall award the employee an allowance at the expense of the employer.

The amount may not be less than a minimum amount or more than a maximum amount fixed under the following conditions:

Calculate compensation for unfair dismissal

Please note

in determining the amount of the allowance, the judge may take into account the severance pay paid on the occasion of the termination except for the statutory redundancy allowance.

If the dismissal is declared unjustified and irregular, only compensation for unjustified dismissal shall be paid.

Terms

Dismissal on personal grounds is irregular when the procedure has not been followed. However, this failure is not sufficient to cancel or deprive the dismissal of a real and serious cause.

Is the employee reinstated in the company?

The law does not provide for the possibility of reinstating the employee in the event of a simple irregularity in the dismissal procedure for personal reasons.

Is the employee compensated?

If the dismissal of an employee occurs without due process, but for a real and serious cause, the judge shall grant the employee compensation.

The amount of compensation (to be paid by the employer) for unlawful but justified dismissal may not exceed one 1 month pay.

Please note

if the dismissal is declared unjustified and irregular, only compensation for unjustified dismissal shall be paid.