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Dismissal for personal reasons void, without real and serious cause or irregularity

Verified 18 January 2022 - Directorate for Legal and Administrative Information (Prime Minister)

Where a judge challenges a dismissal on personal grounds, the consequences of his decision vary depending on whether the dismissal was declared void, without any real and serious cause or irregularity.

Dismissal is loose where the judge annuls the dismissal.

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

Dismissal is irregular where the dismissal procedure has not been followed.

Null

Dismissal for personal reasons is loose where the judge declares the dismissal void (dismissal annulled).

Cases of nullity provided for by law include dismissals in one of the following situations:

  • Due to a discrimination
  • In violation of a fundamental freedom (freedom of expression, freedom of association, religious freedom, right of withdrawal of the employee)
  • In connection with the performance of the duties of juror or citizen assessor
  • Refusal of a geographical transfer to a State criminalizing homosexuality on grounds of sexual orientation
  • For having recounted or testified, in good faith, facts constituting a offense or a crime of which he would have had knowledge in the course of his duties
  • Against an employee whistleblower
  • Because of a legal action in relation to discrimination
  • Because of a 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
  • Accident at work Without respecting the protection related to the
  • Without respecting the protection granted to certain employees (member of the ESC: titleContent for example)
  • Infringement of the right to strike
  • Against an employee who has testified (or reported) to ill-treatment or deprivation of a person accommodated in social and medico-social institutions or services
  • Without respecting the protection related to the death of the child under 25
  • Without respecting the protection of the death of an actual and permanent dependent under the age of 25

The employee may apply for reinstatement in his or her employment or in an equivalent job.

The employer may oppose reintegration only if it is impossible (for example: the employee has claimed his pension rights or the company's cessation of activity).

Please note

an employee who applies for recognition of a dismissal which is void may not be reinstated if he has applied for judicial termination.

Employee reinstated in the company

If the employee is reinstated in the company, he is entitled to compensation.

This allowance shall be equal to the maximum of the wages he has been deprived of in the period between the termination of the contract and his reintegration.

The period between the termination of the contract and its reintegration entitles the holder to paid leave.

Refusal of reintegration by employee

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

This allowance may not be less than the salaries of the last 6 months for dismissals declared void in the following cases:

  • Due to a discrimination
  • In violation of a fundamental freedom (freedom of expression, freedom of association, religious freedom, right of withdrawal of the employee)
  • Because of a 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
  • Accident at work Without respecting the protection related to the
  • Dismissal of a protected employee (member of the ESC: titleContent for example) in relation to its mandate
  • Infringement of the right to strike

Unjustified

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

Reintegration into the company is possible, on a proposal from the judge.

Employee reinstated in the company

The reinstated employee retains the benefits acquired before his dismissal.

Refusal of reintegration by employee or employer

If the employee or employer refuses to be reinstated, the judge shall award the employee an allowance payable by the employer.

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

A simulator is used to estimate the amount of compensation that can be determined by the judge:

Calculate compensation for wrongful dismissal

Please note

in determining the amount of the indemnity, the judge may take into account the severance pay paid on the occasion of the break-up, except for statutory severance pay. If the dismissal is declared unjustified and irregular, only the compensation for unjustified dismissal shall be paid.

Irregular

Dismissal on personal grounds is irregular where the procedure has not been followed. However, that failure is not sufficient to annul the dismissal.

The dismissal recognized as irregular by the judge does not cancel the dismissal.

It does not prevent the pattern the reason for the dismissal is valid. The dismissal may then be irregular and have a real and serious cause (i.e. be justified).

The law does not provide for the possibility of reinstating the employee in the event of a mere irregularity in the procedure for dismissal on personal grounds.

Dismissal without real and serious cause

Where the dismissal is without real and serious cause, only compensation for wrongful dismissal shall be paid.

Other case

Where dismissal at a real and serious cause, the judge shall award the employee compensation.

The amount of this allowance (payable by the employer) may not exceed one 1 month salary.

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