Dispute resolution: General Rules
General rules of dispute resolution
A dispute between an employer and an employee can be resolved via judiciary (Labor Court) or alternative non-judiciary (mediation and arbitration) methods.
Belgium has a civil law system, with a Labor Court in every judicial district (nine in total). Each chamber of the court consists of a professional judge, the president and two non-professional judges, known as assessors, one of whom is an employer representative and the other an employee representative. The burden of proof lies, in principle, with the party making allegations, but there are several exceptions in which the employer will have the burden of proof.
If the value of the case is less than €250,000, the parties can bring the case to the labor tribunal free of charge, providing a low threshold for the employee to go to court. Of course, this does not include litigation costs, which have to be paid after the judgment.
The Labor Court has full jurisdiction over individual labor disputes between employees and employers, as laid down in the Judicial Code, without any minimum or maximum value attached to the conflict. The parties are not obligated to try to resolve the conflict via mediation or arbitration before going to court. In case of a collective conflict such as a strike, obviously the employer and the employees’ representatives (union, delegation), as well as the permanent representatives of the union will try to resolve the issue via negotiations and mediation with the support of the Federal Ministry of Employment, following certain procedures covered by a collective bargaining agreement.
If the parties disagree with the judgment of the labor tribunal, it is possible to appeal, by a written request, before the Labor Court of Appeal within a month of the date on which the judgment’s notice has been delivered to the parties. The composition of this court is the same as the Labor Court’s. From a labor law perspective, the statute of limitations is five years for any claim during the employment contract up to one year after the termination of the contract. The review period may be longer if the noncompliance is sanctioned with a criminal penalty, also taking into account the concept of “continuous infringement.”
Alternative dispute resolution
Alternative dispute resolution (ADR) procedures to resolve employment issues were not popular for a long time. In 2005, a new law reorganized alternative ways to resolve conflicts. Mediation and arbitration can be used for individual labor conflicts. However, legal practices are hard to change, and few courts propose this alternative way of resolving conflicts.
Since 2005, any dispute which can be terminated by settlement agreement may be submitted to mediation. The mediator is a neutral third party who acts as a facilitator and encourages the rapprochement between the antagonistic positions of the two parties. The mediator, who has to be accredited by the Federal Public Service Employment, Labour and Social Dialogue, works out an acceptable outcome. The agreement itself is not enforceable, but can be homologated by a judge.
There are two categories of mediation:
- Voluntary mediation where parties can, whether or not during a judicial procedure, rely on a mediator of their choice;
- Court-instigated mediation where the judge designates the mediator, at the request of the judge or parties and with their agreement.
A mediation is not for free. The mediator’s fee and costs have to be paid by the parties. However, it has the advantage of flexibility, speed, confidentiality, control etc.
Under Belgian law, it is not possible to insert an arbitration clause in the employment agreement with the purpose of bringing the case to an arbitrator if a future conflict arises, unless the employee earns at least €66,406 gross per year and is in charge of the daily management of the company.
However, once the dispute or conflict arises, the parties can agree to bring it to arbitration. Any dispute that arises out of a contractual (labor) relationship and that can be terminated by a settlement agreement may be submitted to arbitration.
The most important arbitration institution in Belgium is the CEPANI in Brussels. A third party hears the case presented by each party and makes a ruling, which has res judicata (i.e. cannot be appealed against) and is enforceable.
Arbitration has the advantages of speed, confidentiality and lower costs.