Search Q&A
Made redundant
Question
Hello, my husband has been made redundant, he is 57 years old, and has worked in Belgium for 15 years and in Ireland for 12 years prior to that with the same company. They tell him that his is entitled to noticed based on the 15 years only and are ignoring the years prior to that. They are using something called the formula Clayes. Is he entitled to notice and sererance and how does it work. Will he be entitled to unemployment benefit, does that start immediately. They have told him he no longer needs to do any work as he's finished since 31st December. We are very stressed about all of this, so any links to information would be great. I can read French, but not if it's very technical. Thanks for any help.
I would suggest you also contact the Irish government department with responsibility for employment rights. They have dedicated services to protect workers rights. Since your husband worked in Ireland I'm sure they would advise you and may be able to help you also know who to contact for advice in Belgium.
You can submit an enquiry here
http://www.workplacerelations.ie
You could also seek advice from an Irish trade union.
First I am sorry you are going through this.
Your husband should immediately join a union. Preferably one which has representative in his work place, but any of the three big will do. You can find links to the websites via Wikipedia http://en.wikipedia.org/wiki/List_of_trade_unions_in_Belgium. The unions give legal advise to their members either free or with very modest prices, and if they have representation on your husbands workplace they are participating into negotiations on conditions for dismissals. Also claiming the unemployment benefits will be lot easier via the union than via the general unemployment allowance office.
If the contract was finished last year the Clayes formula should indeed be the guideline. The Clayes is however not the legal minimum but a baseline created through several court cases. Companies are not obliged to follow it, but in practice they usually do in fear of the employee going to court. The legislation concerning dismissals changed from beginning of this year, but if the dismissal is dated on 2013 the old legislation applies.
Since your husband is over 45 years old, the company is obliged to offer him outplacement as part of the package.
Your husband will be entitled for unemployment benefits after the notice period is over (even if he does not work during the notice, this is still counted as paid time). Even though the allocations will start running only later he should immediately subscribe as job seeker in your local unemployment office (VDAB, Actiris or Forem). A certificate of the registration will be needed when he applies for the unemployment benefits. The unemployment office will likely also be able to give information on the outplacement options. Basic info of the unemployment benefits can be found in here: http://www.onem.be/Frames/frameset.aspx?Path=D_opdracht_VW/&Items=1&Lang...
Whether the 12 years in Ireland should be taken into account depends on what conditions your husband agreed on when he was transferred to Belgium. If he was transferred here with same contract and/or as ancient employee (keeping his 'anciennity'), the 12 years need to be taken into account. If there is no specification in his contract about keeping the anciennity, he was considered as a new employee when he started in Belgium and the past years do not count in the current situation. You should be able to verify this in his contract, or addendum made when he was transferred. Also if he kept some of his benefits (paid holidays moved over, seniority linked benefits etc kept) when he moved over, this could be used as evidence that he moved as ancient employee. Union or lawyer can help with this.
"Whether the 12 years in Ireland should be taken into account depends on what conditions your husband agreed on when he was transferred to Belgium."
I don't agree with that statement. I think this will be covered clearly in law, and no contract or agreement would have been able to override that.
There is legislation in place that protects your employment rights when you are transferred from one company to another. If that had happened within the same country (anywhere in EU), then the 12 years would have had to be taken into account.
Given that in this case, he has transferred from one EU country to another, I can't possibly imagine that they would legally be able to get away with not counting the 12 years in Ireland towards the notice package, and that is a LOT of money. Regardless of what the contract says. Nor can I imagine that your husband would have been dumb enough to give up on accrued employment rights as part of the move 15 years ago.
Therefore, there ought to be nothing to negotiate, but given the amount of money involved, you'll need to present that in a way that they have no counter argument against, so if they don't just accept to give him 27 years of service, you'll need to present the legal facts.
Hi, my name is Filip Corveleyn and I was until recently a partner in a Belgian employment niche law firm, currently switching from being a lawyer to entrepreneur (http://be.linkedin.com/pub/filip-corveleyn/1/441/348)
I accidentally noticed this thread while looking for co-working space.
I would be happy to have a (no strings attached) quick look at the documents (contracts) and tell you whether you actually stand a chance of being able to have them take into account the extra 12 years. There are some legal dispositions and constraints attached to an international career path. Trade unions are often not very well equipped to deal with international issues.
my email = filip.corveleyn@cantab.net
my offices are at place Schuman.
feel free to contact me.
Talk to lawyer ASAP. Claeys is average of min and max based on litigation history in belgium and not a rule. Normally in this case your husband should be offered on the maximum side of the ' notice period ' when made redundant by employer. Note that HR of company is very experienced in these matters and you have almost no previous experience, so you need to talk to lawyer to defend your rights.
You'be all been an absolutely brillant help. As discussed we went to a top employment lawyer, and based on what he said and the advice on here, my husband told my company that he expected to be paid for all years of service, he mentioned to them he had consulted a lawyer and that he knew his rights, all done in a very carefully drafted letter, and referred to many documents over the years, different contracts and correspondance from HR that we had kept. I keep everything, anything from HR/work that might be of relevance because along the way one has to anticipate this day coming. And they came back and agreed to the full Claeys formula based on all years service. Someone mentioned about contracts, initially he had a good contract, but they changed it and he couldn't not sign it, or at that time he would have lost his job, but he was in the first year entitled to holidays, which shows it's a continuation, as you know when you first arrive in Belgium you're not entitled to holidays, in addition, he was entitled to extra leave based on years of service, so all those things show a continuation.
Outplacement service
On Monday he went to see them, they were helpful, but said he has to go to the VDAB office, I think that is what we call in Ireland FAS. But that the VDAB would not make him a priority due to his age, that they will probably consider him still employed as he is being paid and by the time that ends he'll be even older. Basically that VDAB have more urgent priorities. Also was told he will get no chomage for a long time, and then it's on a sliding scale.
Does the fact that I work affect his chomage, in Ireland, after one year of chomage/unemployment you are means tested and if your wife works you generally get nothing more from the goverment. Is it the same system in Belgium.
Today he is looking into joining a union. He's been a bit lost with the shock of it all but he's already made contacts to try and get employment, and will move, to say London or Dublin if necessary. Also the outplacement firm told him to join a union.
I have another question for everybody, my husband only speaks English, I'm able to do everything in French, but neither of us can do anything in Dutch, should my husband deal with all things in French? I'm assuming we will run into problems if we meet someone in the Dutch offices who doesn't speak English, but of course the flip side of that is the Dutch speaks tend to speak excellent English. I can fill out any forms and go to the offices with him when he has to register etc. What do you guys think? And then if documents come home in Dutch I'd have to ask someone to translate, which I don't have to do currently because we've everything in French.
Pages