Notice vs. termination
It is very important to clearly specify the difference between giving notice and terminating a contract. Notification is given when a fixed-term employment contract that is longer than six months ends by law. An employment contract can be terminated by withdrawing. There is no obligation to notification in the event of termination, but a period of notice does apply. This prevents the employer from terminating an employment contract and the employee from being unemployed within a short period of time.
When does the notification obligation not apply?
If a fixed-term employment contract has been entered into for a period shorter than six months, the employer is not obliged to give notice. Even if the employment relationship between employee and employer is based on a temporary employment contract with a temporary employment clause, the employer will not be obliged to give notice. If an employee has been appointed for a specific project, or to replace, for example, an employee on maternity leave, i.e. if no calendar date has been set which means the end of the employment, no obligation to give notice also applies.
Failure to meet the obligation to give notice, or failure to meet it correctly
If an employer does not, or not correctly, comply with the notification obligation, this does not mean that the employment contract cannot be terminated by operation of law. However, there will be other consequences for an employer who does not, or not correctly, fulfil his obligation of notice. The following cases are possible:
- Complete failure to comply with the notification obligation. In such a case, the employer will have to pay the employee a severance payment equal to one month's salary.
- Late fulfilment of the notification obligation. If the employer fails to comply with the notice period, the employer shall pay a notice payment equal to the employee's monthly salary calculated over the number of days the employer is late.
The height of the notice fee
The notice fee is due from the moment the employment contract has ended or will end by operation of law. This is therefore one month after the employer's notification obligation arises. From that moment on, the circumstances of failure to comply with the obligation to give notice, or failure to do so in time, can be taken into account and the amount due can be calculated. All or part of the monthly salary will have to be paid by the employer.
No payment of the notice fee
In the event of bankruptcy, suspension of payments or a debt rescheduling arrangement, an exception is made to the notice fee. In that case, the notice fee is not due. Even if the notification obligation has been fulfilled, but not in writing, an exception can sometimes be made to the obligation to pay the notice fee.
Continuation?
If the employer has not given notice of termination of the employment contract, but has also not given notice of his intention to continue the employment contract and under what conditions he would like to continue it, the employee can assume that the employment contract is extended for an equal period of time, with a maximum of one year. Even in the event of continuation, but failure to comply with the notification obligation or the notice period, the employer must pay the notice fee.
Notice in advance
Notice is given in advance if, when entering into the employment contract, the employer includes a clause in this employment contract stipulating that the employment contract will end on a certain date. In this way, the employer complies with the obligation to give notice and prevents him or her from having to pay a notice fee. However, with the entry into force of the Wab on the 1st of January 2020, there may be negative consequences associated with the inclusion of a notification in advance. If the employment contract is terminated or is not continued on the initiative of the employer, which is the case when notice is given in advance, the employer will owe a transition compensation to the employer in question immediately upon commencement of employment. Even if the employee decides that he or she does not want to continue working for the employer after the expiry of the period laid down in the employment contract, he or she is entitled to this transition allowance, because the termination of the employment contract has nevertheless been initiated by the employer. In this context, it is therefore important for an employer to consider carefully the inclusion of a clause in which the employment contract is terminated in advance.
Any questions?
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