Dismissal for Frequent Late Arrivals Not Manifestly Unreasonable

• 05/01/2017
• Articles

In a recent case before the Labour Court of Ghent (Court), (Arbrb. Gent (afd. Gent) 3 november 2016, AR 15/2289/A, unpublished) the employer had terminated the employment contract of an employee with a notice period of four months and four weeks due to the frequent late arrivals of the employee at the workplace, as well as the employee’s late notification thereof to the employer. In the absence of any improvement of the employee’s conduct during the notice period, the employer terminated the employment contract with immediate effect during the notice period by paying an indemnity in lieu of notice equal to the remuneration that the employee would have received during the remainder of the notice period.

More than six months after her dismissal, the employee asked the employer for the reasons that had led to her dismissal. As a general rule, an employee should address this request to the employer by registered mail within two months following the end of the employment contract or, in the case of a dismissal with a notice period, within six months from the notification thereof, without exceeding two months after the end of the employment contract.

The request by the employee remained unanswered. The employee argued that, due to the immediate termination by the employer during her notice period, a new term for requesting the communication of the reasons for dismissal had commenced. Therefore, she argued that the request for reasons was not belated and she accordingly claimed a lump-sum civil fine of two weeks’ salary and an indemnity for “manifestly unreasonable” dismissal of 17 weeks’ salary.

The Court held that the employee’s request for reasons was late as the term for such a request had started to run after the notification of the termination with a notice period and the decision of the employer to pay the remainder of the notice period had not triggered a new term. Moreover, the Court considered frequent late arrivals of the employee at the workplace as a reason which relates to the employee’s capability and conduct as well as to the operational requirements of the company and therefore rejected both claims of the employee.