Are you dealing
with a dismissal?
At Law & More, we understand that dismissal is one of the most far-reaching measures in labour law.
Are you dealing with a dismissal? At Law & More, we understand that dismissal is one of the most far-reaching measures in labour law. That is why we use a personal approach and together with you we can determine your situation and the possibilities.
After all, you can be confronted with a dismissal in various ways. Did you choose for it or not? And under what circumstances? The decision regarding the dismissal cannot just be taken by you or by your employer. In both cases, certain conditions apply to a valid dismissal and the parties have certain rights and obligations. It is therefore important, if you are confronted with a dismissal in any way, to inform about your legal position and the consequences thereof.
Law & More’s lawyers are experts in the area of dismissal law and are happy to provide you with legal advice or assistance during a dismissal procedure.
Grounds for Dismissal
If your employer wants to proceed with your dismissal, he must, since 1 July 2015, base his choice on one of the specific grounds for dismissal, substantiate it well and prove its existence. This does not apply in the event of a dismissal during the probationary period or due to reaching the retirement age. There are eight restrictive legal grounds for dismissal:
On this basis the employer can only make a successful appeal if one or more jobs, over a future period of 26 weeks, will necessarily be lost as a result of measures for efficient management that are results of business conditions.
The employer can use this ground if an employee has been sick or incapacitated for work for two years or more. After all, after two years the prohibition of termination during illness no longer applies and the employee can be dismissed due to illness.
If the employer has a large dismissal file, has tried to improve the functioning of the employee and can prove that the employee is unfit to perform his work, he can use this ground to dismiss the employee.
If an employee who behaves (seriously) culpably at work, for example by acting in breach of confidentiality or safety regulations, he can be dismissed by the employer for that reason. According to the law, the employer can only proceed to dismissal on this ground if he cannot reasonably be expected to continue the employment contract.
Under certain circumstances it may happen that an employment relationship between the employee and the employer becomes so disrupted that dismissal is unavoidable; if the employer wants to appeal for dismissal on this basis, he must demonstrate that there is actually a disruption, that disruption is serious and lasting, and that the relationship can no longer be restored.
The employer can rely on this ground if the employee is regularly ill, does not come to work and this has unacceptable consequences for the employer’s business operations. Conditions for frequent illness absence are that the employee is regularly, but not long-term sick, that being unable to work is not a result of insufficient care for the working conditions, that recovery is not expected within 26 weeks and that the employee cannot perform his work in a modified form within that period.
In the law various circumstances are considered as reasonable grounds for dismissal. But “other circumstances” than the explicitly stated circumstances can also form a reasonable ground for dismissal. The circumstances must be such that it is not reasonable for the employer to continue the contract with the employee.
Since freedom of conscience is a fundamental right, the employer cannot request a dissolution to the court solely if an employee refuses work because of a conscientious objection. Only when the employer and the employee have sat around the table and have concluded that the work cannot be carried out in an adapted form and that reassignment is not an option, can the employer request the dissolution of the employment agreement.
Prohibition of Dismissal
An employee who has an employment contract for a definite or indefinite period, receives a certain degree of protection against dismissal. There are in fact a few general and special dismissal prohibitions based on which the employer may not dismiss the employee or only under special circumstances. In general, two types of dismissal prohibitions can be distinguished: ‘due to’ and ‘during’ dismissal prohibitions.
For example, the employer may not dismiss the employee ‘due to’: membership of a trade union, attending meetings of the Upper House, taking up the right to adoption leave or parental leave, transfer of company and not wanting to work on Sundays. These ‘due to’ dismissal prohibitions apply in full and there are no exceptions.
The employer may also not dismiss the employee ‘during’, for example: illness, maternity leave and childbirth, military or replacement service, membership of a participation body or of a preparatory committee of a works council. A few exceptions do apply to the ‘during’ cancellation prohibitions. If you want to know what exceptions these are and whether they apply in your case, please contact Law & More.
Under certain circumstances, an employee may still be dismissed despite a valid dismissal prohibition. This is the case, for example, when the employee agrees in writing to his own dismissal, dismissal during probation or immediate dismissal. As an employee, you can return in writing to your consent to the dismissal within 14 days. The employer must point this out to you. If this does not happen, your reflection period will be extended from 14 days to 3 weeks. Are you dealing with a dismissal and are you curious as to whether dismissal prohibitions or exceptions apply in your case? Law & More’s lawyers are experts in the area of dismissal law and are happy to provide you with legal advice.
An employee can be dismissed in various ways, depending on the reason for the dismissal and the relationship with the employer. Since the introduction of the Work and Security Act in 2015, the dismissal reason determines the dismissal procedure to be followed.
1. Dismissal by mutual consent: when this path is followed by the employer and the employee, negotiations take place to reach good agreements. The relevant agreements are then recorded in a settlement agreement. This agreement may, for example, contain a regulation on how many vacation days must be paid, what severance pay is granted and whether a non-competition clause applies. It is important that these agreements are legally well documented, and it is wise to have these agreements checked by an expert lawyer. If you sign such a settlement agreement as an employee, you have 14 days to return to it.
2. Immediate dismissal: in that case your employment contract ends with immediate effect. Such a dismissal does not require permission from the UWV or the subdistrict court judge, and no notice period must be observed. However, the employer must meet a few strict legal requirements:
• The reason for immediate dismissal must be urgent: ‘acts, characteristics or behaviour of the employee, which have the consequence that the employer cannot reasonably be expected to continue the employment agreement.’
• The dismissal must be given immediately (after the incident in question or culpable behaviour of the employee).
• The urgent reason must be communicated to the employee immediately (after the immediate dismissal).
If these requirements are not met by the employer, the dismissal is voidable, and the employee can successfully challenge this dismissal in the court. Do you have a question about instant dismissal, or do you want to present your own situation to a labour specialist? Then contact Law & More.
3. In the event of dismissal for economic reasons or due to incapacity for work longer than 2 years: the employer must apply for a dismissal permit from the UWV. In order to be eligible for such a permit, the employer must properly substantiate the reason for dismissal. After that the employee gets a chance to defend himself against it. The UWV then decides whether the employee can be dismissed. If the UWV grants permission for dismissal and you as an employee do not agree with that decision, you can submit a petition to the subdistrict court judge. If the court decides in your favour, the subdistrict court can decide to restore your employment contract or to award you compensation.
4. In the event of dismissal for personal reasons: the path of the sub-district court must be followed. This is not an easy path for the employer. The employer must have built up an extensive file that demonstrates that dismissal is the only option if he wants approval for his request for termination of the employment contract. It is possible for you as an employee to defend yourself against it after the employer has submitted a request for termination. It is not mandatory to submit a statement of defence, but it is advisable. After all, as an employee you can state why you do not agree with the dismissal or why you think you should be eligible for severance pay. The subdistrict court judge will generally strive for an agreement between the parties. If this cannot be achieved, the sub-district court will decide. Only when all legal requirements have been met, will the subdistrict court proceed to dissolve the employment contract.
Labour Market Balance Act
From January 1st, 2020, the rules regarding employment contracts and dismissal will change and will be regulated in the Labour Market Balance Act. The introduction of the LMBA brings with it the following important changes:
the existence of this ground makes it easier for employers to dismiss the employee. At this moment, for the dismissal of an employee, one of the eight grounds for dismissal and all the conditions of the relevant ground for dismissal must be met. The cumulation ground is added with the LMBA as a ninth dismissal ground. As a result, the employee’s dismissal is also possible if circumstances from multiple grounds for dismissal give enough cause for this. For example, is there malfunction but also a (partially) disturbed work relationship? The employer could then rely on this new ground for dismissal.
permanent and flexible employees receive a compensation as a result of dismissal. Initially, an employee was only entitled to transition compensation if he worked in the company for two years or more. With the introduction of the LMBA, a transition payment will be built up from the first working day. On-call workers or employees who are dismissed during the probationary period are also entitled to a transition payment. However, on the other hand, the transition payment for employees with an employment contract of more than ten years will be abolished. This means that it will becomes ‘cheaper’ for the employer to dismiss an employee with a long-term employment contract.
According to the current state of the law, the employer can conclude 3 temporary contracts with the employee in a maximum of 2 years. From 2020, with the introduction of the LMBA, an employer may conclude a maximum of three fixed-term employment contracts with the maximum duration of three years (36 months) instead of two years (24 months). Consequently, after 36 months or the fourth fixed-term employment contract will automatically be converted into a permanent employment contract. This Act applies immediately on January 1st, 2020. That means that the three-year duration also applies to an employment contract that ends on or after January 1st, 2020, even if the employment contract was entered into before January 1st, 2020.
Dismissal and Unemployment Benefit
Are you dealing with a dismissal? Then the starting point applies that you are entitled to unemployment benefits. However, in a few cases you are not eligible for this. To be eligible for unemployment benefit, you must meet the following conditions:
• You must be insured for unemployment;
• You must be unemployed;
• You must be immediately available for paid work;
• You must meet the week requirement (at least worked 26 of the 36 weeks in the period prior to the first day of unemployment);
• You may not be culpably unemployed (you have resigned without major reasons or have been dismissed with immediate effect);
Within a few weeks after your dismissal you can apply for unemployment benefits at the UWV. The UWV assesses whether you meet the conditions for unemployment benefits and then decides whether you are eligible for the benefit in question after dismissal. If you receive unemployment benefits from the UWV, then you are obliged to apply for a job. If you do not, the UWV can withdraw your benefit. The duration and amount of the unemployment benefit depends on various circumstances. Do you have any questions about your dismissal and what consequences this has for the unemployment benefit, or whether you meet the condition for the benefit? Then contact Law & More. Our lawyers are experts in the area of dismissal law and are happy to help you further.