Not wearing a mouth mask in the workplace: why Gazet van Antwerpen missed the mark.
On the front page of the Gazet van Antwerpen edition December 1, 2020, the headline reads: "Dismissal for Urgent Cause for Not Wearing Mouth Mask at Work." This title makes it seem that not wearing a mouth mask can be invoked by an employer for dismissal for cause. Some clarification is in order.
The reason for the article is a ruling by the Antwerp Labor Court, Hasselt Division, in which the dismissal for urgent cause of a protected employee was accepted. The direct reason for the dismissal for urgent cause was the infliction of serious damage to company assets. Only after the start of the dismissal procedure was the employee concerned caught not wearing a mouth mask, although this was mandatory within the company.
In addition to the damage done, the labor court ruled that the mouth mask violation was also sufficiently grounded to justify the dismissal for cause. The judgment was appealed. The employer and employee reached an amicable settlement during the appeal proceedings, as a result of which the Labor Court did not rule on the dismissal for urgent cause.
To infer from the labor court's ruling that failure to comply with the duty to wear a mouth mask in the workplace can always justify dismissal for cause is too short of the mark.
Well-being at work
Every employer has an obligation to ensure the health and safety of its employees and provide them with a safe workplace. Initially, the employer will need to identify potential risks in the workplace that could compromise the health and safety of employees. Based on this, appropriate measures can then be taken.
The potential danger of becoming infected with the Covid-19 virus in the workplace can be assessed as a health risk by an employer. Especially if sufficient distance cannot be kept. In order to ensure the safety of the employees, the employer can introduce a general obligation to wear a mouth mask within the company. The employee will then be required to wear the mouth mask.
Dismissal
The question arises whether an employee can be dismissed for cause if he refuses to wear the mouth mask. In such a case, the employer will have to be able to prove that the refusal is a serious deficiency that makes any professional cooperation permanently and immediately impossible. Moreover, the three-agent deadline must also be respected. In fact, these are the criteria used by the court to assess a dismissal for serious cause.
Urgent dismissal is the most severe sanction an employee can receive, as in such a case no severance pay is paid and the employee can also be excluded from entitlement to unemployment benefits. For this reason, an urgent dismissal is therefore always critically assessed by labor courts.
It is highly doubtful whether a one-time failure to comply with the mouth mask requirement is sufficiently serious to justify dismissal for cause. The circumstances surrounding the refusal will be critical. Experience tells us that caution - in such a case - is called for. As an employer, it is better to enter into discussion with your employee and formally give him notice of default. If, despite several warnings, the employee continues to flout the obligation to wear a mouth mask, the chances of a dismissal for urgent reasons are all the greater. In this case, the employee concerned is manifestly illegally endangering the health and safety of his colleagues through his behavior.
Do you have questions about a dismissal for cause or implementing appropriate health measures in the company? Do not hesitate and contact us at info@bannister.be or phone number 03/369.28.00
Author: Mr. Maxim Korthoudt
December 1, 2020
