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Termination: protection of the personnel representative

Verified 30 July 2020 - Directorate for Legal and Administrative Information (Prime Minister)

Employees with representative functions in the undertaking shall be granted special protection against dismissal. In addition to the usual dismissal procedure, the dismissal is subject to prior authorization by the labor inspector. This protection applies for terms that vary according to the mandates.

Protected employee status ensures that the dismissal of the employee is not related to his duties as a staff representative. This protection is also intended to protect the employee from retaliation by the employer.

Protection shall apply to an employee who occupies at least one of the following positions:

  • Member elected to the delegation of the Social and Economic and Social Committee (SSC)
  • Trade Union Commissioner (SD)
  • Employee appointed by a representative trade union organization
  • Trade union representative (RSS)
  • Employee who requested the organization of the election of the representatives of the staff in the company
  • Employee representative appointed in the course of a reorganization or liquidation
  • Employee proving that the employer was aware of the impending candidacy or appointment of the employee as a staff representative prior to being called for a pre-termination interview
  • Councilor prud'homal

FYI  

protection shall apply to the holder as well as to the alternate.

The duration of protection against dismissal varies according to the status of each staff representative.

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CSE member

From publication of applications

The applicant employee shall enjoy 6 months..

During the mandate

Protection shall apply throughout the employee's term of office.

After termination of the mandate

Upon expiry of the term of office, the employee shall be protected against dismissal for a period of 6 months..

Employee participating in the organization of professional elections.

The following persons shall be protected against dismissal:

  • Employee without a trade union mandate requesting the organization of professional elections if the request is then taken up by a trade union organization
  • Employee appointed by a trade union organization who requests the organization of elections
  • Employee appointed by a trade union organization to negotiate, at the invitation of the employer, the pre-election memorandum of understanding

This protection benefits only one employee per trade union organization and the first employee, not mandated by a trade union organization, who requested the organization of elections.

Protection has a duration 6 months .. The period shall run from the date on which a trade union organization requests by registered mail to the employer to organize professional elections.

Councilor prud'homal

Employee running

The employee is protected as soon as the employer is informed of his application. The unelected candidate shall remain protected for 3 months following the appointment of the advisers by the administrative authority.

During the mandate

Protection shall apply throughout the employee's term of office.

After termination of the mandate

At the end of the term of office, the employee shall be protected against dismissal for a period of 6 months..

Trade Union Commissioner (SD)

During the mandate

Protection shall apply throughout the employee's term of office.

After termination of the mandate

At the end of the term of office, the employee shall be protected against dismissal for a period of 12 months (unless he has been in office for less than one year).

Trade union representative (RSS)

During the mandate

Protection shall apply throughout the employee's term of office.

After termination of the mandate

At the end of the term of office, the employee shall be protected against dismissal for a period of 12 months (unless he has been in office for less than one year).

The employer must follow the usual dismissal procedure for any employee (whether for reasons staff or economic).

If there is a CSE: titleContent, he must be consulted after the prior interview between the employer and the employee. He gives his opinion on the dismissal after hearing the employee.

The employer must then apply to the labor inspector for authorization to terminate the protected employee.

This request must be addressed in the 15 days following the CSE: titleContent to the labor inspector by electronic means or by registered letter with notice of receipt in duplicate. Minutes of the meeting of the CSE: titleContentmust be attached to the application.

Where an undertaking has no or no CSE: titleContent, the application for authorization of dismissal shall be sent directly to the labor inspector after the prior interview.

Before making a decision, the inspector must conduct a so-called adversarial investigation. He or she personally and individually interviews the employee and the employer. It gathers the arguments and explanations of each. The employee shall take note of all the documents produced by the employer to justify the dismissal. During the investigation, the employee may, at his request, be assisted by a representative of his trade union.

The labor inspector shall take his decision within 2 months following the date of receipt of the application for authorization to terminate employment. After this period, and in the absence of a decision by the labor inspector, the authorization to terminate employment shall be rejected.

The inspector's decision shall be reasoned and notified to the following persons by registered letter with notice of receipt (LRAR):

  • Employer
  • Employee
  • Employee's trade union organization (if employee is a trade union delegate or representative)

The decision of the labor inspector may be contested by the employer or the employee. It should indicate possible time limits and remedies.

The appeal may be administrative or contentious.

The administrative appeal allows the employer or protected employee to challenge the decision of the labor inspector before the inspector himself (ex gratia) or before the Minister of Labor (hierarchical appeal).

The administrative appeal must be filed in the 2 months from notification the decision of the labor inspector. In the absence of a reply from the labor inspector, 2 months or the department in 4 months the appeal is dismissed (implied decision to reject).

The contentious appeal allows the employer or the employee to challenge the decision of the labor inspector before the administrative court. He must be trained in 2 months which follow:

  • The notification the explicit decision the labor inspector or the minister of labor
  • The implied decision to reject the labor inspector or the minister resulting from his silence for 2 months and 4 months respectively
  • Communication of reasons for an implicit rejection decision

Warning  

The appeal shall not suspend or annul the original decision of the labor inspector.