The resigning employee is, in principle, required to give notice before permanently leaving the job. However, an employee may terminate their employment contract without notice in the event of serious misconduct by the employer. In such cases, the contract may be terminated with immediate effect.
Who is concerned
All employees have the ability to resign with immediate effect in the event of serious misconduct on the part of their employer, regardless of the type of employment contract (fixed/permanent contract) or business sector (public or private sector).
How to proceed
Form and content of termination with immediate effect
As with a resignation with notice, notice of a resignation with immediate effect is given to the employer:
- either by registered letter;
- or by a letter of resignation delivered by hand. In this case, the employer must sign a copy of the letter to confirm receipt.
In the letter of resignation with immediate effect, the employee informs the employer of his intention to immediately terminate the employment relationship.
Employees are not required to indicate the specific reasons for their resignation in their letter of resignation with immediate effect.
The employee is only required to indicate and prove the serious facts causing them to resign if the case is brought before the labour tribunal.
Note that the causes must have occurred prior to the resignation. Also, the employee cannot invoke facts beyond a period of one month from the day when he became aware of them, unless this or these facts occurred during this period of one and gave rise to criminal proceedings.
The employee is however free to state the reasons that led him to resign with immediate effect in his letter of resignation to the employer. In this case, the employee is required to state, in detail:
- the allegation(s) against the employer that led him to resign;
- and the circumstances which were of such a nature to be considered as a fact of serious misconduct.
For example: if the employee has learned of an employer's misconduct on 3 June, they may no longer cite that misconduct as grounds for terminating the contract after 3 July.
Those facts must be real, and the employee must, where applicable, be able to establish them – in other words be able to provide proof in any proceeding before the labour tribunal (to be found at each Magistrate's Court).
The employer can of course deny having committed a serious fault and contest the resignation with immediate effect. He can then ask the employee for compensation before the labour tribunal (corresponding to the notice that the employee would have had to respect had he resigned with notice).
Employer's serious misconduct justifying the employee’s resignation
Any fact or fault which immediately and definitively renders it impossible to maintain a working relationship constitutes serious grounds against the employer which justifies immediate termination of the contract. The acts likely to justify immediate termination of the employment contract and payment of damages include:
- not having registered the employee for social security;
- non-payment or repeated late payment of wages;
- cases of insults, threats, physical violence or sexual harassment by an employee that are not addressed by the employer, or the same acts committed by the actual employer;
- repeatedly and systematically denying leave.
Potential compensation of the employee in the event of serious misconduct by the employer
To obtain compensation, the employee will have to bring his or her case to the labour tribunal by means of an application. There is no need for representation by a legal counsel.
If the termination of the employment contract for serious misconduct of the employer is considered justified and founded by the labour tribunal, the employee can claim damages if he or she can successfully establish:
- the existence of the harm suffered;
- the causal link between the employer's misconduct (already proven in case of a justified resignation) and the harm suffered.
The employee may also be entitled to:
- a compensatory indemnity (or allowance) of notice equal to the salary corresponding to the notice period to be respected by the employer;
- severance pay proportional to their seniority in the company (at least 5 years).
The employee may also go before the labour tribunal to have the employer's serious misconduct recognised in an attempt to obtain damages and subsequently receive unemployment benefits.
In case of a resignation motivated by an act of sexual harassment or for fault of the employer, the employee may, by simple request, ask the president of the labour tribunal to be authorised to collect, by provision, unemployment benefits pending the final judgment of his case.
The employee will have to reimburse the Employment Fund for the unemployment benefits he / she has received, if the courts declare that their resignation is unjustified for serious misconduct on the part of the employer. Otherwise, the employee can keep the benefits and it will be up to the employer to repay them.
If the employee resigns after having been dismissed with notice – i.e. during the notice of dismissal period – they are entitled to severance pay, provided they have been employed for at least 5 years by the same employer.
Forms / Online services
Modèle de lettre de démission avec effet immédiat
Modèle de lettre de démission avec effet immédiat
Who to contact
Magistrate's Court of Diekirch8-10, Place Joseph Bech
Phone : (+352) 80 88 53-1Fax : (+352) 80 41 90
Magistrate's Court of Esch-sur-AlzettePlace Norbert Metz
Phone : (+352) 530-529Fax : (+352) 530 529 304
Magistrate's Court of LuxembourgCité Judiciaire - Plateau du Saint-Esprit - Building JP
Phone : (+352) 47 59 81-1Fax : (+352) 46 54 34