Should you hear an employee before dismissing them? Loss of an opportunity upon dismissal

A recently published judgment of the Court of Cassation once again shed light on how the theory of ‘loss of an opportunity’ should be approached within employment law. In particular, the Court addressed the question of how a claim for compensation for loss of an opportunity in the context of employment termination should be assessed.

The facts of the present judgment can be summarised as follows. After an incident that took place on 4 August 2016, an employee was summoned on 10 August 2016 by his employer, Municipality X, for a hearing, which was to take place on 16 August 2016, to give the employee the opportunity to give his side of the story. The employee informed the employer on 14 August 2016 that he had received the summons for the hearing but that he would not be able to attend the hearing due to stress and related illnesses as a result of working overtime and that he was, therefore, unfit for work. On 16 August 2016 - the day the hearing was scheduled - the employer, without having heard the employee, proceeded to dismiss the employee with immediate effect and paid compensation in lieu of notice. Shortly afterwards, on 12 September 2016, the employee was supposed to start employment with another municipality (Municipality Y) in a similar position.

The employee argued that he was entitled to a compensation for the loss of an opportunity. In particular, the opportunity he would have lost was the opportunity to choose to remain employed by his former employer (Municipality X) if he had not been dismissed. Although the employee had already applied to Municipality Y for the new position, which he eventually accepted, if he had not been dismissed, he could have chosen to remain employed by Municipality X, which therefore constituted his lost opportunity. Because the employee was dismissed without being heard, and therefore, before he could defend himself, the employee claims to have suffered damages due to the loss of an opportunity. According to the employee, these damages were unrelated to the material and moral cause of the dismissal itself, which meant that they were not covered by the compensation in lieu of notice.

The Labour Court, whose view the Court of Cassation upheld here, stated that there was no loss of an opportunity in this regard, as the employee could not produce evidence of it. In particular, the loss of an opportunity has to be proven on the basis of damages suffered, which are definite and not merely hypothetical, conjectural or conditional. In the present case, however, the Court found that the employee had a mere opportunity to remain employed by Municipality X, but it was not at all proven by the employee. This is because it was not proven that the employee, who had already applied for a new position before his dismissal, would not have refused this new job. As a result, the loss of opportunity to keep his job with Municipality X is not proven. For this reason, the employee's claim was rejected by the Court of Cassation.

In this case, it was ruled that it was thus not certain that the employee had lost an opportunity by not hearing him in advance. However, the question is whether the judgment would have been the same if the employee had no other job lined up and thus had certainly lost the opportunity to remain employed. Moreover, given that these were municipal employees, one might ask whether the government, as an employer, should be more careful than a private employer and is thus bound to hear employees. This question remained unresolved at the time of dismissal. However, shortly afterwards, the Constitutional Court ruled on this issue. Since then, the legislator has also intervened, obliging an employer who employs persons in the public sector to always organise a hearing prior to any dismissal of both statutory and contractual personnel. You can read all about this change in the law here.

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Cass. 16 September 2024, www.juportal.be