XVIth Meeting of European Labour Court Judges 12 September 2007 Marina Congress Center Katajanokanlaituri 6 HELSINKI, Finland National reports and judgements Decision-making in Labour Courts General Reporter: Judge Jorma Saloheimo, Labour Court of Finland Belgium National report Judge Koen Mestdagh, Raadsheer in het Hof van Cassatie (Conseiller à la Cour de cassation) Is the case decided immediately upon the main hearing, or is a separate session held for that purpose ? As a rule, the Court of Cassation decides immediately upon the main hearing and the decision is passed the same day, but sometimes another session is needed. A. Labour Tribunal (first instance jurisdiction) or a Labour Court of Appeal also decides immediately upon the main hearing, unless the ‘Ministère Public’ intervenes (cf. question 2) and gives a written advisory opinion that is communicated to the parties, in which case the case is decided after the period allowed to the parties to reply to the advisory opinion, has expired. The decision is generally passed within a month of the deliberation. 1. Is there a presenting official involved in the process ? If yes, please describe the formal and factual role of the official. Before the Court of Cassation the ‘Ministère Public’ (advocate general) intervenes in every case. His role is to give an advisory opinion to the court. It is generally given only orally at the main hearing. When a written advisory opinion is given, it is communicated to the parties beforehand. Before the Labour Tribunal and the Labour Court of Appeal the ‘Ministère Public’ (the ‘auditeur du Travail’ before the tribunal and an ‘advocate general’ before the court) can intervene when he considers this useful. In Labour law disputes the intervention of the ‘Ministère Public’ is not mandatory. Intervention of the ‘Ministère Public’ has become exceptional before the Labour Tribunal. Before the Labour Court of Appeal it happens more regularly. When the ‘Ministère Public’ decides to intervene, he normally will give a written advisory opinion to the tribunal or court after the main hearing, generally within two weeks. 1 Since 1997, as a result of a decision of the European Court of Human Rights, the parties are allowed a short period decided by the judge, to reply to the advisory opinion. 2. Does the composition of your court include lay members ? If yes, please give a description of their role in deliberation leading to the decision, with a view to the interplay between the chair and the lay members. What is in your experience the main contribution of the lay members in the decision-making process ? All members of the Court of Cassation are professional judges (5 of them must have practised at least during 5 years in a Labour Tribunal or Labour Court of Appeal). The Labour Tribunal and Labour Court of Appeal are in principle made up by 1 professional judge who is presiding and 2 lay judges, one nominated by employer organisations and the other by the trade unions. All members have an equal vote. The professional judge leads the discussion and will try to come to a unanimous decision. If he can’t, it’s a majority decision. Usually the two lay members will have opposite views but it is possible that the professional judge is in minority and has to write a decision against his own opinion. The main contribution of the lay members is that they can share their knowledge of how the rules really are applied in the field or what difficulties are experienced to apply a rule, with the professional judge. As some lay members also take part in the negotiation of collective agreements in a particular branch of industry, they can give valuable information allowing to interpret the clauses of collective agreements, e.g. concerning function descriptions and function classifications. On the whole their contribution leads to a better insight in reality and a higher level of empathic ability. 3. To what extent does the presiding judge take part in writing the decision? At the Court of Cassation the presiding judge takes part in drawing up the decision just like the other judges. He is responsible for checking the final result. At the Labour Tribunal and the Labour Court of Appeal the presiding judge, who is always the professional judge, does all the writing. The lay members only take part in the deliberation. 4. What are the main legal sources you use in deciding a case, especially a difficult one ? In the reasoning of the decision, do you make express references to legal literature, case law, previous decisions of your own court, etc. ? The Court of Cassation uses previous decisions of the own court and legal literature to a large extent in deciding a case but doesn’t make references to it in the reasoning of the decision. The advocate general usually makes references in his advisory opinion, mostly to previous decisions of the Court of Cassation. The Labour Tribunal and the Labour Court of Appeal both use and make express references to legal literature and previous decisions of other courts, especially to decisions of the Court of Cassation. When making a reference they have to present it as their own opinion and not as a binding rule. 5. Is it customary to express the personal views of the judge in a decision ? No. The Court of Cassation only judges on points of law and never expresses personal views in a decision. 2 Other judges may sometimes express a personal view in a decision but it’s not customary and isn’t considered as a good practice. 6. Are there any further comments you wish to make on the subject ? No. Judgement Labour Court of Appeal, Ghent Ghent Division, Eighth Chamber 24 October 2003 A.R. nr.: 261/02 Rep. no. PUBLIC SESSION OF TWENTY-FOURTH OF OCTOBER TWO THOUSAND AND THREE. IN THE CASE OF: The private limited company [D.V.] , (...) APPELLANT, represented by Mr. L. Carlé, attorney, deputising for Mr. G. De Smedt, attorney in Lokeren, AGAINST: [H. V.D.] , (...), RESPONDENT, represented by Mrs. B. Buysse, delegate of a representative employees’ organisation, holder of a written proxy. * * * Having regard to the exhibits of the file, in particular the certified copy of the judgment in a defended action by the Labour Tribunal in Dendermonde, Sint-Niklaas division, First Chamber, dated 17 April 2002 (A.R. n° 57.670), whic h has not been served. Having regard to the petition for appeal, deposited with the Registry of the Labour Court of Appeal in Ghent, Ghent division, dated 9 August 2002, and the cross appeal by the respondent, lodged by counter claim with the registrar on 22 November 2002. Having heard the representations cum legal remedies of the parties at the public proceedings on 26 September 2003. * * * 1. Admissibility of appeal The appeal was lodged in the manner and the time limits prescribed by law. It therefore appears admissible. The same is true of the cross appeal. 2. Subject of the dispute By summons served on 14 October 1999, (...), the respondent (the original claimant) requested – in a provisionally enforceable judgment, notwithstanding further redress, without bail, and with the exclusion of any judicial deposit or payment into court – for the appellant (the original respondent) to be ordered to pay: • 170,894 francs (4,236.35 euros) gross severance pay; 3 • (…) • 500,000 francs (12,394.68 euros) net in damages for non-compliance with the agreement that the respondent would remain in the employ of the appellant for at least 4 years; • (…) plus the statutory and legal interest. Finally, the respondent petitioned for the appellant to be sentenced to pay the costs of the action. The respondent claims to have been the manager and owner of the private limited company [D.H.V] for many years. In an agreement dated 20 August 1998, he transferred his business to one of his employees, namely [W.D.], who continued to run the business as a newly named [D.V.] private limited company. An arrangement was made under which the respondent would remain in the employ of the new private limited company for 20 hours per week for a net monthly salary of 35,000 francs, corresponding to a gross monthly salary of 49,178 francs, plus the use of a car, Mercedes make, which was leased by the appellant. In an agreement dated 20 August 1998, the appellant undertook to employ the respondent for a time span of at least four years. As part of this agreement, a flat-rate compensation of 500,000 francs was agreed for non-compliance with the terms of the agreement. The same agreement set forth the right of the respondent to use said car, with the right to purchase the car at the end of the lease contract. For the non-compliance of this undertaking, a flat-rate sum in compensation of 500,000 francs was agreed. According to the respondent, from the very outset of the labour contract, the appellant was constantly difficult, failing to comply with various arrangements that had been agreed. On 2 November 1998, he was even dismissed on due grounds, the substance and form of which he disputes. As such, he is not only petitioning for severance pay but also for the damages agreed, arising from the termination of the labour contract before the end of the first four years and for the damages agreed for the failure to comply with the agreement concerning the use of the leased car. He also claims various amounts owed at the end of the labour contract. * * * By judgment pronounced by the First Chamber of the Labour Tribunal in Dendermonde, Sint-Niklaas division, dated 17 April 2002, the claim was found duly admissible and partly substantiated.