Invoke a constructive resignation in the scope of an incapacity? Be careful!

The employer can invoke a constructive resignation in case the employee expresses his/her will to terminate the employment agreement. However, this is a subjective element which is not easy to demonstrate. The Brussels Labour Court has reminded us of this once again.

Facts of the case

In this case, an employee had not informed his employer about the successive extensions of his period of his incapacity, nor had he provided his employer with a medical certificate for 24 years.

The employer sent the employee three formal notices in total: the first one on 22 October 2020, the second one on 29 October 2020 and the third one on 5 November 2020. However, the employee did not receive these and the notices were sent back to the employer stating that they were not claimed.

When the employee received this warning for the third time, the employer invoked constructive resignation as, in his opinion, the employee’s behavior showed his will to terminate his employment agreement. The employee did not agree and subsequently claimed the severance indemnity as well as an indemnity for a manifestly unreasonable dismissal.

Decision of the Court

• The fact that the employer has not asked anything from the employee for 24 years does not imply that he has waived his right to ask, for the future, compliance with the contractual obligations, nor that the parties would have agreed on an exemption for the employee of the obligations regarding the absence.

• However, the Court considered that the employer cannot seriously deduce from the lack of response from the employee regarding the successive formal notices that he shows his intention to resign from the employment agreement while the employer knew that the employee had not been informed about those formal notices. The employee’s silence was therefore meaningless.

• As there was no constructive resignation, the employer had to pay the severance indemnity but not the indemnity for a manifestly unreasonable dismissal.

Relevance of the decision

This decision confirms the majority case laws on this topic that rarely accept that an employer can invoke a constructive resignation in similar circumstances. The Court reminds us that, in order to invoke a constructive resignation, the employer needs to be able to prove the employee’s intention to terminate the employment agreement. This is a subjective element which is not easy to demonstrate.

Employers should therefore always be careful when invoking a constructive dismissal. Given the complexity of this topic, we strongly recommend you ask the assistance of a legal advisor. Therefore, if you are faced with a similar case, Pro-Pay can advise you on this matter.