Non-ratified treaties¹

Dismissal without prior interview/ Gap in domestic legislation/ Establishment of a jurisprudential principle based on international law/ Reference to ILO Convention No. 158 to establish a jurisprudential principle affirming a worker’s right to a prior interview

A worker had been dismissed for gross misconduct. His employer accused him of errors committed in the course of his work. In challenging his dismissal before the Labour Court, he claimed that he had not been given a prior hearing to answer the accusations made against him. 

In the absence of a provision in Belgian law requiring that a worker be interviewed prior to dismissal, the Labour Court drew inspiration from Article 7 of ILO Convention No. 158 on Termination of Employment, although this Convention had not been ratified in Belgium. 

Having set forth the principle enshrined in Article 7 of ILO Convention No. 158, the Court affirmed that, although this Convention had not been ratified by Belgium, and the rules it contained therefore did not have force of law in the country, it could nevertheless be:

“A source of inspiration for courts to the extent that it expressed a certain consensus at the international level regarding the minimum reciprocal rights and obligations of employers and workers”.

Basing itself on the preparatory work for ILO Convention No. 158, the Court explained that application of the Convention was all the more justified:

“In that it had been approved by the four Belgian delegates (government, employers and workers) at the ILO’s General Assembly², which at least indicated that, on the one hand, Belgium recognized the ILO and, on the other, that the rules set out in this Convention did not on the face of it seem to upset to any great degree the Belgian legal system”. 

By drawing on the provisions of Article 7 of ILO Convention No. 158, the Labour Court considered that, by not giving the worker a hearing before dismissing him for gross misconduct, when the things he was accused of were not such that one might not reasonably expect the employer to do so, the latter had caused the worker damage which should be remedied by payment of compensation.