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

Verified 02 August 2023 - Directorate for Legal and Administrative Information (Prime Minister)

When an employer dismisses an employee, it must specify the reason for the dismissal in the letter sent to the employee. The employee may contest the reason for his dismissal. To do so, it must refer the matter to the labor board. The judge may challenge a dismissal on personal grounds. What can the judge decide? The employee can he be reinstated? in the company? The employee does he receive compensation? ? We are taking stock of the regulations.

The judge may cancel dismissal where it is forbidden by law (e.g. dismissal of an employee on maternity leave): in this case the dismissal is loose.

The judge may decide that the reason for dismissal is invalid , in this case, the dismissal shall be without real and serious cause.

When the procedure dismissal has not been respected (e.g. absence of prior interview), the judge may decide that the dismissal is irregular.

The consequences of the judge's decision vary depending on whether the dismissal was declared null and void, without any real and serious cause or impropriety.

Dismissal void

Dismissal for personal reasons is loose where the judge annuls the dismissal.

Cases of nullity provided for by law are, in particular, dismissals made in any of the following :

  • 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
  • If the employee refuses a geographical transfer to a country where homosexuality is criminalized on the grounds of sexual orientation
  • For having recounted or testified, in good faith, facts constituting a offense or a crime of which the employee would have been aware 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 related to 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 reinstatement only if it is impossible (e.g. the employee has claimed his pension rights).

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.

The compensation is different depending on whether or not the employee is reintegrated into the company.

The employee is reintegrated into the company

If the employee is reinstated in the company, he or she right 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.

The employee refuses to be reinstated in the company

If the employee refuses or is unable to reinstate, he or she shall entitlement to the following allowances:

This allowance cannot be less than salaries for the last 6 months for redundancies declared invalid 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

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

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

The compensation is different depending on whether or not the employee is reintegrated into the company.

The employee is reintegrated into the company

The employee is reinstated retains acquired benefits before his dismissal.

The employee or employer refuses to reintegrate into the company

If the employee or employer refuses to reinstate him, the judge shall award the employee a compensation 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:

Estimate the amount of compensation for wrongful dismissal

Please note

in determining the amount of compensation, the judge may take into account severance pay in connection with the termination, except for statutory severance pay.

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

Irregular dismissal

Dismissal on personal grounds is irregular where the procedure was not followed.

However, that failure is not sufficient to annul the dismissal because the pattern the reason for the dismissal may be justified.

In this case, the dismissal may be irregular but have a real and serious cause.

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.

The compensation of the employee differs if the dismissal has no real and serious cause or not.

The dismissal has no real and serious cause

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

The dismissal has a real and serious cause

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

The amount of this allowance may not exceed one 1 month salary. This allowance shall be paid by the employer.

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