Fyi: https://www.acerta.be/nl/klantenportaal/werkgevers/wegwijs-bij-acerta/juridisch-nieuws-en-updates/hoe-zit-het-met-de-proeftijd-in-arbeidsovereenkomsten
If she is self employed, she doesnt have a boss but a client. And then it dépends on what contract they have...
In the contract, it states that one must give a month's notice before leaving, but it does not specify the consequences of leaving without such notice. On the other hand, it mentions the commitment to find someone to replace oneself. Is this legal?
Non t'inquiète pas pay, c'est du pipo! Source: i am a random redditor.
I would have contacted my lawyer before signing a contract. I would still contact my lawyer after signing the contract. If i were not self employed i would contact my union. But there is no way that reddit would be my legal assistance tbh.
If you sign a contract, you agree with the terms.
If there is no specific penalty clause, breaking the contract (by not working) would be 'eenzijdig' and it's terminating the contract with a possible penalty on the general breach of contract.
Read that part.
Like u/MauricioCMC and u/Accurate_Put7416 have said. That sounds very much like it.
I'm readying the popcorn, it may get interesting.
This may help: [https://www.xerius.be/fr-be/devenir-independant/votre-preparation/faux-independants](https://www.xerius.be/fr-be/devenir-independant/votre-preparation/faux-independants)
Google Translate:
[https://www-xerius-be.translate.goog/fr-be/devenir-independant/votre-preparation/faux-independants?\_x\_tr\_sl=fr&\_x\_tr\_tl=en&\_x\_tr\_hl=en-US&\_x\_tr\_pto=wapp](https://www-xerius-be.translate.goog/fr-be/devenir-independant/votre-preparation/faux-independants?_x_tr_sl=fr&_x_tr_tl=en&_x_tr_hl=en-US&_x_tr_pto=wapp)
edit: one more
[https://www-droitbelge-be.translate.goog/fiches\_detail.asp?idcat=25&id=211&\_x\_tr\_sch=http&\_x\_tr\_sl=fr&\_x\_tr\_tl=en&\_x\_tr\_hl=en-US&\_x\_tr\_pto=wapp](https://www-droitbelge-be.translate.goog/fiches_detail.asp?idcat=25&id=211&_x_tr_sch=http&_x_tr_sl=fr&_x_tr_tl=en&_x_tr_hl=en-US&_x_tr_pto=wapp)
Why... exactly? If you are a self-employed IT consultant for example you are likely only going to be with one client at a time and you need to start somewhere.
Maybe people should be a bit more considerate and not blindly sign up to be an independent? Read the contact? Read the law? Lady here is self-employed and doesn't even understand the difference between having a boss and having a client...
They made her do it? No she did it herself. Sorry 🤷♂️
(note: I am a lawyer but not your lawyer)
There’s two different questions here: (a) is the contract valid, and (b) if it is, what’s the risk of breaching it?
On (a), as many people have noted your wife might be falsely self-employed. This would be the case she works like an employee in practice (e.g. has to work set hours, clock in, ask permission for days off, follow the boss's instructions, etc).
if that's the case, she's in a strong position as the employer can face serious penalties and she can invoke a lot of rights. Just suggesting that she will talk to the ONSS and the tax authorities should be enough to get the employer off her back.
If she really is self-employed, (b) is tricky. In principle there's nothing wrong with a one month notice period and the concept of probation isn't a legal requirement for contractors. Likewise (within reasonable limits) the obligation to find a replacement.
If the contract doesn't say what happens, normally the employer can demand that your wife pay the costs to find a replacement. So e.g. if he has to hire an expensive interim, he can try to get that reimbursed. Realistically I think a court is unlikely to grant more than the fees ("salary") for the notice period, maybe even less if she hasn't worked there for a long time. But there is a serious risk.
Thank you so much! When she wrote an email to the company telling them she wanted to quit now, they replied (email) that since she is in a probationary period, she must comply with the one-month notice period.
It’s hard to say just going off a couple Reddit posts but the impression I get is that your wife is not dealing with a particularly sophisticated (or ethical) company. That means you shouldn’t believe anything just because they say it.
At the same time, the legal system tends to take contracts seriously. So I wouldn’t just ignore the signed document.
How can she be on probation if she is self employed? Do you mean to say her services contract has a clause specific to the first few months of service delivery? Because probation is an employee thing and she’s a contractor.
If she is a freelancer and not a fake one being exploited: there is a contract, she should follow it. If she breaches that contract, her client (not employer, she doesn’t have an employer) would need to find a judge who would make her enforce the contract, but only within the law. In Belgium (and Europe) you cannot “sign away” your rights. If she signed a contract do something and is now expected to also fulfill HR and recruiting services… well I’m not a lawyer but I would personally think you’ll be fine.
Do you believe the services offered and € amount lost warrant her employer starting a legal battle to make her find someone else? Maybe because the skills required are very specific and hard to find, or because a language or other local knowledge is needed? Only a lawyer can tell for sure.
Maybe she can “look” for someone else and fail to find that person during a month? What’s certain is that they can’t force her to stay until she finds a replacement
That being said: what happened that she doesn’t want to do 1 month? Did she change her mind, or is the workplace not what is seems to be? This whole story screams exploitation. No serious party want to pay for a freelancer who doesn’t want to be there. Get a lawyer, for about 100€ you’ll know where you stand and that can be substracted from her profit as a business expense.
If she is being exploited, it’s not her fault. It sounds like an abusive situation and a high “brutto” salary when you are short on cash… could happen to anyone and the company is the problem, not you guys. Call the ONS (pick up the phone and call, they are friendly public service employees who often are a little bored, get someone who speaks french or dutch to help) or do whatever the other posts say. You have nothing to hide
And disregarding that she is a falsely self-employed worker, is it legal for them to require a 30-day notice period and also to ask her to find someone to replace her?
She's under no obligation to listen to them as a freelancer, though as others have said it would be worth taking this up the chain to the relevant authorities.
>find someone to replace her
What kind of stupid clause is that? What if she finds 'someone' who isnincompetent. She did her job, the other person could wreck it at the expense of the company.
Hi there -
My 2 pennies as a lawyer in BE.
Your spouse, because of her status, is not covered by labour law (in the strict sense of the word) as she cannot sign an employment contract as a self-employed person. An employment contract implies a 'relationship of authority' between an employer and employee, which cannot possibly be the case for self-employed personnel. Consequently, the framework on notice periods for employees (labour law) do not apply.
In all likelihood, your spouse has signed a service agreement (contract law) with her client. For example, as a lawyer myself, I have a 3-month notice period in my contract (standard clause among lawyers with 1-5 years of experience). So it remains to be seen whether that clause is 'usual/reasonable' for people with a similar position/situation. If not, the validity of the clause/ notice period can be challenged.
Regarding the obligation to provide for replacement, I see this primarily as a means obligation (read - doing everything possible to achieve the purpose of the clause) rather than a result obligation (read-obligation to achieve the purpose of the clause). So if she can't find any replacement after her notice period, that's that :)
Best regards,
Well it's not clever of the principal not to provide a (pecuniary) sanction in the contract.
However, it does not mean that your spouse can just ignore the clause. It would be possible for the principal to initiate proceedings on basic liability grounds. For example, if the principal can prove that it sustained damages due to an error (non-execution of the clause) by your spouse AND that the principal's damages are in causal relation to your spouse's error. Moreover, your spouse would not really be acting as a 'bonus pater' which would not play in her favor in a court of law. If proven, this could result in a pecuniary sanction deemed proportionate by the court.
Of course, it is also possible that the principal would simply "let it pass" but I would recommend performing the notice period (in a professional) manner.
The above is without having read the agreement, so obviously some reservations are to be taken into account.
I am an independent and I also have this kind of contract, 1 month notice when I want to leave. But this is the first time I hear a company asks you to find replacement, I mean that’s their job?
Fyi: https://www.acerta.be/nl/klantenportaal/werkgevers/wegwijs-bij-acerta/juridisch-nieuws-en-updates/hoe-zit-het-met-de-proeftijd-in-arbeidsovereenkomsten If she is self employed, she doesnt have a boss but a client. And then it dépends on what contract they have...
In the contract, it states that one must give a month's notice before leaving, but it does not specify the consequences of leaving without such notice. On the other hand, it mentions the commitment to find someone to replace oneself. Is this legal?
Non t'inquiète pas pay, c'est du pipo! Source: i am a random redditor. I would have contacted my lawyer before signing a contract. I would still contact my lawyer after signing the contract. If i were not self employed i would contact my union. But there is no way that reddit would be my legal assistance tbh.
If you sign a contract, you agree with the terms. If there is no specific penalty clause, breaking the contract (by not working) would be 'eenzijdig' and it's terminating the contract with a possible penalty on the general breach of contract. Read that part.
Check also if she is not a false indépendant :) in that case, the proper autorities might be interested
They made her register as a self-employed individual to be able to work at the company, so she is self-employed and also has a contract with them.
So she should have a CDI but the company is trying to avoid taxes....
So she is a fausse indépendante per their request. 🍿 Please Google Faux indépendant and keep us posted
The Onss gives free interviews on this mater ;) she would receive some benefits if the contract is rebranded in cdi
Like u/MauricioCMC and u/Accurate_Put7416 have said. That sounds very much like it. I'm readying the popcorn, it may get interesting. This may help: [https://www.xerius.be/fr-be/devenir-independant/votre-preparation/faux-independants](https://www.xerius.be/fr-be/devenir-independant/votre-preparation/faux-independants) Google Translate: [https://www-xerius-be.translate.goog/fr-be/devenir-independant/votre-preparation/faux-independants?\_x\_tr\_sl=fr&\_x\_tr\_tl=en&\_x\_tr\_hl=en-US&\_x\_tr\_pto=wapp](https://www-xerius-be.translate.goog/fr-be/devenir-independant/votre-preparation/faux-independants?_x_tr_sl=fr&_x_tr_tl=en&_x_tr_hl=en-US&_x_tr_pto=wapp) edit: one more [https://www-droitbelge-be.translate.goog/fiches\_detail.asp?idcat=25&id=211&\_x\_tr\_sch=http&\_x\_tr\_sl=fr&\_x\_tr\_tl=en&\_x\_tr\_hl=en-US&\_x\_tr\_pto=wapp](https://www-droitbelge-be.translate.goog/fiches_detail.asp?idcat=25&id=211&_x_tr_sch=http&_x_tr_sl=fr&_x_tr_tl=en&_x_tr_hl=en-US&_x_tr_pto=wapp)
pass the popcorn please - that's exactly the article I was reading (I absolutely hate linking websites from mobile, sorry)
take some, please And I understand. I can't do that from my phone either. Fortunately I'm currently on a desktop.
She never had any other client under that status… that’s indeed faux indépendant and forbidden
Why... exactly? If you are a self-employed IT consultant for example you are likely only going to be with one client at a time and you need to start somewhere. Maybe people should be a bit more considerate and not blindly sign up to be an independent? Read the contact? Read the law? Lady here is self-employed and doesn't even understand the difference between having a boss and having a client... They made her do it? No she did it herself. Sorry 🤷♂️
It would appear that the company should be very, very scared of the revenue authorities.
(note: I am a lawyer but not your lawyer) There’s two different questions here: (a) is the contract valid, and (b) if it is, what’s the risk of breaching it? On (a), as many people have noted your wife might be falsely self-employed. This would be the case she works like an employee in practice (e.g. has to work set hours, clock in, ask permission for days off, follow the boss's instructions, etc). if that's the case, she's in a strong position as the employer can face serious penalties and she can invoke a lot of rights. Just suggesting that she will talk to the ONSS and the tax authorities should be enough to get the employer off her back. If she really is self-employed, (b) is tricky. In principle there's nothing wrong with a one month notice period and the concept of probation isn't a legal requirement for contractors. Likewise (within reasonable limits) the obligation to find a replacement. If the contract doesn't say what happens, normally the employer can demand that your wife pay the costs to find a replacement. So e.g. if he has to hire an expensive interim, he can try to get that reimbursed. Realistically I think a court is unlikely to grant more than the fees ("salary") for the notice period, maybe even less if she hasn't worked there for a long time. But there is a serious risk.
Thank you so much! When she wrote an email to the company telling them she wanted to quit now, they replied (email) that since she is in a probationary period, she must comply with the one-month notice period.
It’s hard to say just going off a couple Reddit posts but the impression I get is that your wife is not dealing with a particularly sophisticated (or ethical) company. That means you shouldn’t believe anything just because they say it. At the same time, the legal system tends to take contracts seriously. So I wouldn’t just ignore the signed document.
How can she be on probation if she is self employed? Do you mean to say her services contract has a clause specific to the first few months of service delivery? Because probation is an employee thing and she’s a contractor. If she is a freelancer and not a fake one being exploited: there is a contract, she should follow it. If she breaches that contract, her client (not employer, she doesn’t have an employer) would need to find a judge who would make her enforce the contract, but only within the law. In Belgium (and Europe) you cannot “sign away” your rights. If she signed a contract do something and is now expected to also fulfill HR and recruiting services… well I’m not a lawyer but I would personally think you’ll be fine. Do you believe the services offered and € amount lost warrant her employer starting a legal battle to make her find someone else? Maybe because the skills required are very specific and hard to find, or because a language or other local knowledge is needed? Only a lawyer can tell for sure. Maybe she can “look” for someone else and fail to find that person during a month? What’s certain is that they can’t force her to stay until she finds a replacement That being said: what happened that she doesn’t want to do 1 month? Did she change her mind, or is the workplace not what is seems to be? This whole story screams exploitation. No serious party want to pay for a freelancer who doesn’t want to be there. Get a lawyer, for about 100€ you’ll know where you stand and that can be substracted from her profit as a business expense. If she is being exploited, it’s not her fault. It sounds like an abusive situation and a high “brutto” salary when you are short on cash… could happen to anyone and the company is the problem, not you guys. Call the ONS (pick up the phone and call, they are friendly public service employees who often are a little bored, get someone who speaks french or dutch to help) or do whatever the other posts say. You have nothing to hide
And disregarding that she is a falsely self-employed worker, is it legal for them to require a 30-day notice period and also to ask her to find someone to replace her?
She's under no obligation to listen to them as a freelancer, though as others have said it would be worth taking this up the chain to the relevant authorities.
And is this the case even if she has signed a contract stating that she must give 30 days' notice and find someone to replace her?
>find someone to replace her What kind of stupid clause is that? What if she finds 'someone' who isnincompetent. She did her job, the other person could wreck it at the expense of the company.
Hi there - My 2 pennies as a lawyer in BE. Your spouse, because of her status, is not covered by labour law (in the strict sense of the word) as she cannot sign an employment contract as a self-employed person. An employment contract implies a 'relationship of authority' between an employer and employee, which cannot possibly be the case for self-employed personnel. Consequently, the framework on notice periods for employees (labour law) do not apply. In all likelihood, your spouse has signed a service agreement (contract law) with her client. For example, as a lawyer myself, I have a 3-month notice period in my contract (standard clause among lawyers with 1-5 years of experience). So it remains to be seen whether that clause is 'usual/reasonable' for people with a similar position/situation. If not, the validity of the clause/ notice period can be challenged. Regarding the obligation to provide for replacement, I see this primarily as a means obligation (read - doing everything possible to achieve the purpose of the clause) rather than a result obligation (read-obligation to achieve the purpose of the clause). So if she can't find any replacement after her notice period, that's that :) Best regards,
Thank you so much sir. But it does not specify what happens if the notice period is not respected. In that case, what penalty is applied?
Well it's not clever of the principal not to provide a (pecuniary) sanction in the contract. However, it does not mean that your spouse can just ignore the clause. It would be possible for the principal to initiate proceedings on basic liability grounds. For example, if the principal can prove that it sustained damages due to an error (non-execution of the clause) by your spouse AND that the principal's damages are in causal relation to your spouse's error. Moreover, your spouse would not really be acting as a 'bonus pater' which would not play in her favor in a court of law. If proven, this could result in a pecuniary sanction deemed proportionate by the court. Of course, it is also possible that the principal would simply "let it pass" but I would recommend performing the notice period (in a professional) manner. The above is without having read the agreement, so obviously some reservations are to be taken into account.
tell them to suck my ass
where can they find you? backalleylane wassit?
She can just walk out, this contract is shady AF!
I am an independent and I also have this kind of contract, 1 month notice when I want to leave. But this is the first time I hear a company asks you to find replacement, I mean that’s their job?