Requesting the reasons for dismissal with notice
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An employer who dismisses an employee with notice is not required to state the reasons for the decision in their letter of dismissal. it is up to the employee to request the reasons for their dismissal, if they wish.
Should the employee sue for unfair dismissal, whether or not they requested the reasons for the dismissal is crucially important. Legal precedent interprets the law with the view that, if an employee has requested the reasons for dismissal, the burden will be on the employer to prove that the reasons for dismissal are valid. On the other hand, if the employee fails to request the reasons for dismissal within the required time frame, the burden will be on them to prove that their dismissal was unfair, if they intend to lodge an appeal. This principle remains in effect even if the employer has already stated the reasons in the letter of dismissal.
Who is concerned?
Any person whose employment contract has been terminated with notice by their employer may file a request to learn the reasons for their dismissal.
However, if an employment contract was terminated with notice during a trial period, the employer is not required to state the reasons for termination, even if the employee expressly requests those reasons. On the other hand, if a contract is terminated with immediate effect for serious misconduct during a trial period, the employer must specify, in the termination letter, the serious reasons for the termination with immediate effect.
Prerequisites
The reasons for dismissal with notice may be requested from the employer after notification of dismissal, which may be given by registered letter or hand-delivered letter (in this case, the employee's signature on the second copy of the letter of dismissal serves as an acknowledgement of receipt of the notification).
Verbal (oral) dismissals are considered a violation of the worker's rights.
Deadlines
After notice of the dismissal is given, the employee has one month to request the reasons for their dismissal. If that 1-month period expires on a Saturday, Sunday or public holiday, it is extended to the next working day.
According to long-established legal precedent, the time frame within which an employee's request for the reasons for dismissal must be submitted, or the time frame within which their employer's response to that request must be submitted, begins on the day that the recipient receives the letter.
The notice period begins on the date on which the employer posted the registered letter.
How to proceed
Form of the request for reasons for dismissal with notice
The reasons for dismissal may by requested by a simple registered letter (French, Word, 28 Kb) addressed to the employer. There are no specific requirements in terms of the contents of the letter, but it must clearly specify the reason for the action being taken, i.e. to learn the exact and concrete reasons for the dismissal as notified by the employer. The request for reasons may also be issued by a person acting on the employee's behalf, such as a lawyer or a trade-union secretary.
If the employer has stated the reasons in the letter of dismissal on their own initiative and the employee does not make a subsequent request for reasons, legal precedent holds that the employee is sufficiently informed of the reasons for dismissal. In this scenario, should a dispute arise, the employee may not claim that the reasons were not provided. However, the burden to prove the genuine and serious nature of the reasons shall remain with the employer.
If the employee fails to request the reasons for their dismissal, the burden to prove the unfairness of the grounds will be theirs in the event of a dispute.
Reasons for the dismissal with notice stated the employer
No later than one month after notification, by registered letter, of the request for reasons, the employer must clearly state the reason or reasons for the dismissal—which must be genuine and serious—in a registered letter.
The reasons which may be invoked in support of a dismissal with notice must pertain to:
- employee suitability
This encompasses issues relating to the employee's professional performance, or to frequent absences due to illness which jeopardise the proper operation of the business. - employee behaviour
This encompasses the behaviour displayed by the employee towards their hierarchical superiors, colleagues or the business's clients. - the operational needs of the business
These reasons are of an economic nature and stem from the fact that the employer wishes to reorganise the business, or that the company is encountering financial difficulties forcing the employer to cut jobs in order to reduce costs.
If the employer does not respond to the request for reasons within one month of receiving the employee's request, the dismissal is automatically treated as unfair, and the worker can claim damages on those grounds.
Although the law does not explicitly say so, legal precedent shows that the actions or faults that justify a dismissal with notice must be stated by the employer within a reasonable amount time after they were committed.
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Who to contact
Luxembourg and Diekirch Bar
-
Luxembourg and Diekirch Bar
- Address:
- Luxembourg
-
Luxembourg Bar
- Address:
-
45, Allée Scheffer
L-2520
Luxembourg
Luxembourg
B.P. 361 L-2013 Luxembourg
- Phone:
- (+352) 46 72 72-1
- Fax:
- (+352) 22 56 46
- Email address:
- info@barreau.lu
- Website:
- http://www.barreau.lu
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