Terminating an employment contract due to serious misconduct on the part of the employer
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The resigning employee is, in principle, required to give notice before permanently leaving their job.
However, employees have the possibility to terminate their employment contract without having to observe a notice period in the event of serious misconduct on the part of their employer.
In this case, the termination of the contract takes immediate effect.
Who is concerned?
Each employee, irrespective of:
- the type of employment contract: fixed-term contract (CDD) / permanent contract (CDI); or
- the sector of activity: public or private sector.
Prerequisites
The employee must invoke a serious reason against their employer. This is any fact/fault that makes it immediately and definitively impossible to maintain the employment relationship.
Example:
- not having registered the employee for social security;
- non-payment or repeated late payment of wages;
- cases of insults, threats, physical violence or sexual or moral harassment by an employee that are not addressed by the employer, or the same acts committed by the employer in person;
- repeatedly and systematically denying leave.
The grounds/faults:
- must be prior to the resignation;
- may not be invoked beyond a period of one month from the day on which the employee became aware of them. This time limit does not apply if these facts/faults have given rise to criminal proceedings within this one-month period.
Example: if the employee became aware of a fault committed by the employer on 3 June, they can no longer invoke this fault as a reason for terminating the contract after 3 July.
How to proceed
Form and content of termination with immediate effect
Notification of the letter of termination with immediate effect
The employee must submit their letter of resignation to their employer:
- by registered mail; or
- by hand delivery. In this case, the employer must sign a copy of the letter as an acknowledgement of receipt.
Content of the letter of termination with immediate effect
The employee:
- must inform the employer of their intention to terminate the employment relationship with immediate effect;
- is not required to state the reasons for their resignation.
It is only if the case is brought before the labour tribunal that the employee must indicate and provide proof of the serious reasons for the resignation.
However, the employee may indicate the reasons for the resignation in their letter of resignation. In this case, the employee must state precisely:
- the alleged acts supposedly committed by their employer leading them to resign. These acts must:
- be real;
- be proven in the event of a dispute before the labour tribunal;
- the circumstances which aggravate the nature of the facts/faults.
The employer can:
- deny having committed a serious fault;
- contest the resignation with immediate effect;
- request compensation in lieu of notice from the employee before the labour tribunal. This compensation corresponds to the notice period that the employee would have had to respect in the case of a resignation with notice. In this case, the employee must prove the reality of the facts/faults of which their employer is accused.
Potential compensation of the employee in the event of serious misconduct by the employer
To obtain compensation, the employee must file a petition to the labour tribunal. There is no need for representation by a legal counsel.
If the termination of the employment contract due to gross misconduct of the employer is admitted by the labour tribunal, the employee can obtain damages. To do so, the employee must prove the following:
- the existence of the harm suffered;
- the relationship between:
- the fault on the part of the employer (it is proven in case of justified resignation); and
- the damage suffered.
- the fault on the part of the employer (it is proven in case of justified resignation); and
The employee may also be entitled to:
- a compensatory allowance in lieu of notice equal to the salary corresponding to the notice period to be respected by the employer;
- a severance pay linked to their seniority in the company (at least 5 years).
If the employee resigns after being dismissed with notice, i.e. during the notice period, they are entitled to severance pay provided they have been employed for at least 5 years with the same employer.
Leave not taken
The employee is entitled to the payment of a compensatory allowance for days of leave not taken at the time of termination of the employment contract.
Liquidation of the time savings account (CET)
The employee is also entitled to the payment of a compensatory allowance for the days/hours saved on the time savings account, if the employee has such an account.
Unemployment benefits
The employee may also ask the labour tribunal to recognise the employer's serious misconduct in order to be able to receive unemployment benefits at a later date.
As a matter of fact, if the resignation is motivated by an act of sexual or moral harassment or a fault on the part of the employer, the employee may request to be allowed full unemployment benefits pending the final judgement of their case. This request is made to the president of the labour tribunal by means of a simple petition.
These unemployment benefits must be reimbursed to the Employment Fund (Fonds pour l'emploi) by:
- the employee: if the resignation for serious misconduct by the employer is not justified;
- the employer: if the employee's resignation is justified.
Who to contact
Magistrate's Court
-
Magistrate's Court
- Address:
- Luxembourg
-
Magistrate's Court of Diekirch
- Address:
-
8-10, Place Joseph Bech
L-9211
Diekirch
Luxembourg
Postbox 66 L-9201
- Phone:
- (+352) 80 88 53-1
- Fax:
- (+352) 80 41 90
-
Magistrate's Court of Esch-sur-Alzette
- Address:
- Place Norbert Metz L-4006 Esch-sur-Alzette Luxembourg
- Phone:
- (+352) 530-529
- Fax:
- (+352) 530 529 304
-
Magistrate's Court of Luxembourg
- Address:
-
Cité Judiciaire - Plateau du Saint-Esprit - Building JP
L-2080
Luxembourg
Luxembourg
Postbox 15
- Phone:
- (+352) 47 59 81-1
- Fax:
- (+352) 46 54 34
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