Association performance and employment law compliance

FEBRUARY 2017. Sophie presented to a packed room on two themes: Justifying dismissals and Flexibility needs for international not-for-profit organisations.

Click here to download Sophie’s presentation.

[fancy_head fh_title=”justifying dismissals”]

The law on this topic changed on 1 April 2014 though there is little case law on which to provide much interpretation yet.  Indeed, now the employer needs to justify dismissal for any employee with more than six months’ service upon the employee’s request.  There is no obligation to justify the dismissal upfront in the dismissal letter but if the employee requests for the reasons within 2 months following the end of the employment contract by registered mail, the employer must do so.  It is important for the employer to document and track any behaviour/performance issue in or to constitute a file of proof.  A dismissal can be considered as manifestly unreasonable under certain given conditions, with monetary penalties attached!

Questions from the audience related to the importance of the person’s role in the organisation in case of dismissal during sickness – indeed, association secretariat’s tend to be sparsely populated so each role is important; a consideration for the ease or not of dismissal.  Also, should an employee constantly deliver sick notes to cover regular or even overlapping absences, the only recourse the employer might have is to send “controlling” doctors to the employee upon receipt of each justification by illness of absence.

[fancy_head fh_title=”Flexibility needs”]

Sophie approached this topic using three different case scenarios outlined below, under conditions where you are running an international not for profit organisation and your workload has seriously increased. The presentation refers clearly to each case study, its considerations and solutions to the problem raised.

  • You can hire a new resource upon a fixed term contract or a contract for a defined work. Sophie warned here that the employer must ensure that the contract is signed before the actual entry into service otherwise there will be a legal presumption that the contract is without a fixed term (CDI) entailing more costs for the employer in case of termination.
  • You can hire someone through a Temping agency or a service provider (“subcontracting”). However, in the latter case, care should be taken when giving instructions to the employees of the service provider. Such instructions are only allowed if they are clearly listed in a precise way in the services agreement. In addition, such instructions may never undermine the core of the employer’s authorities which must remain exclusively with the employer-service provider.  If not, there is a presumption of prohibited lease of personnel which can entail civil and criminal liabilities.
  • You could increase the working time but under certain strict conditions only and most likely overtime pay will be due.

Lastly Sophie discussed under what conditions working time can be reduced and what formalities need to be complied with in case of part-time work. Non-compliance with those may result in the employee being deemed to have worked full-time if he is employed under a variable part-time working schedule.

Sophie just managed to finish the presentation and answer the last couple of questions before the clock struck 2pm!

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