Dismissal for cause for having been drunk at the office’s New Year’s party? (PwC Legal)
Publication date: 06/01/2020
The start of a new year: a time for reflection on the previous year, new year’s resolutions… and office parties. Office parties are fun occasions during which colleagues can bond over snacks and a couple of glasses of something fizzy, but what should you do as an employer if one of your employees gets drunk? What if a drunk employee goes too far? Can being drunk at the office’s New Year’s party be regarded as gross misconduct warranting dismissal for cause?
The Belgian legislation on the termination of employment agreements includes the notion of ‘dismissal for cause’ on account of gross misconduct. This type of dismissal will have immediate effect, without a notice period or compensation in lieu of notice being required.
In order for a dismissal for cause to be legally valid, there should be gross misconduct by one of the contracting parties that renders any further cooperation between the employer and the employee immediately and irrevocably impossible. The contracting party that invokes the gross misconduct on the part of the other must be able to prove this gross misconduct and must comply with a set of strict formal conditions.
The notion of ‘gross misconduct’ is defined as a shortcoming so serious that it renders any future cooperation between parties immediately and irrevocably impossible. The appreciation of what constitutes gross misconduct must be made on a case-by-case basis and highly depends on the specific circumstances of the shortcoming. The ultimate decision in this respect lies with the Belgian labour courts, but the required facts-based assessment makes it difficult to distil all-encompassing general principles from the extensive case law on this matter. The below illustrative guidelines can, however, serve as a starting point for assessing whether a shortcoming can be regarded as gross misconduct.
Mostly, getting drunk once will not be considered as sufficiently serious to constitute gross misconduct warranting dismissal for cause. For example, a driver who failed a police breathalyser test after causing an accident but who didn’t show any physical signs of intoxication was not considered rightly dismissed for cause. In its decision, the labour court did not regard this behaviour as reckless endangerment and considered that the employee had never gotten any remarks about dangerous driving and was only given a minor sentence by the traffic court. However, cases that were ruled the other way around also exist. For example, an employee getting drunk at a business event and picking fights with the other guests was found rightly dismissed for cause.
In the case of multiple occurrences of drunken behaviour, especially where the employee has already received an official warning from the employer, the dismissal for cause is more likely to be found based on duly justified grounds. In such a situation, it will be important for the employer to collect proof of all incidents to substantiate the dismissal.
Formal conditions to be met
A dismissal for cause is only valid if two three-day time terms are observed. Firstly, the actual dismissal must take place within three working days (including every day of the week, except for Sundays and statutory public holidays) following the day on which the employer becomes aware of the gross misconduct. The moment of becoming aware does not necessarily coincide with the moment on which the gross misconduct took place. For example, if an employer is only informed of the violent behaviour of a drunken employee during Friday’s office party on the following Monday, the term will not commence until Monday.
Secondly, the employer must inform the employee of the alleged gross misconduct in writing. When doing so, the employer must specifically explain and reason the dismissal for cause. A single mention like ‘being drunk at the office’s New Year’s party’ will not be sufficient. This notification must be done within 3 working days following the dismissal (see above); reasons that are notified after this term cannot be used by the employer to substantiate the dismissal for cause. On pain of nullity, the notification must take the form of a writ served by bailiff, a letter sent by registered post or a document handed over to the employee.
Proving gross misconduct
If the employer deems the drunken behaviour of one of its employees to be gross misconduct warranting dismissal for cause, it will have to be able to prove that gross misconduct actually took place. In addition, the employer will have to prove that it observed the above time limits and other conditions. To prove such compliance, the employer can use all legal remedies available – within the limits set by law – including witness testimonies.
The above conditions are anything but noncommittal. If, in the example of an employer invoking gross misconduct on the part of an employee, the employer does not adhere to the mandatory procedure or if the courts do not regard the shortcoming(s) invoked by the employer to be sufficiently serious to constitute gross misconduct warranting dismissal for cause, the employer will be considered to have terminated the employment agreement with immediate effect without having served proper notice. Consequently, compensation in lieu of notice will be due.
It’s important to point out that an invalid dismissal for cause will not automatically be reclassified as a manifestly unreasonable dismissal as defined in Collective Bargaining Agreement no. 109. Being drunk at an office party may – depending on the circumstances – not be a sufficiently serious shortcoming for dismissal for cause, but that doesn’t necessarily mean that a dismissal for that reason is manifestly unreasonable. This will, again, depend on the facts and circumstances of the shortcoming and the subsequent dismissal.
Whether or not a certain behaviour can be regarded as gross misconduct warranting dismissal for cause will always depend on the specific facts of each individual case. Merely being drunk at an office party, certainly if it’s a one-time occurrence, might be annoying for the employee’s co-workers but will most likely not be sufficiently serious to warrant a dismissal for cause. We suggest that employers who are confronted with intoxicated employees at an office party act with constraint and seek counsel when considering a dismissal for cause, so as not to end up with a hangover themselves.
If you have additional questions regarding instances of dismissal for cause or want to discuss a specific case, feel free to contact one of our experts.
Important closing remark – impact social elections
In the framework of the social elections procedure, the Belgian legislation grants a specific dismissal protection to the social elections candidates. This protection from dismissal starts on date X-30. In short, this protection entails that the candidate employee representatives can only be dismissed for cause if this cause was previously approved by the Belgian labour courts, or for economic / technical reasons which have been previously approved by the competent Joint Committee.
However, on X-35, the employer might not have any information yet about the identity of the possible candidates. Indeed, the employee representative organisations are only required to submit the candidate lists at the latest on X+35, which is in March 2020. For that reason, the period in between X-30 and X+35 is called the blackout period of the dismissal protection, during which the employer should exercise extreme caution when contemplating a dismissal of one of its employees, including for a dismissal for cause.