Dismissal is one of the most far-reaching measures in employment law that has far-reaching consequences for the employee. That is why you as an employer, unlike the employee, cannot simply call it quits. Do you intend to fire your employee? In that case, you must bear in mind certain conditions for a valid dismissal. First of all, it is important to determine whether the employee you intend to dismiss is in a special situation. Such employees enjoy dismissal protection. You can read about the consequences for you as an employer on our site: Dismissal.site.
Grounds for dismissal
You must also base the dismissal of your employee on one of the following grounds:
- economic dismissal if one or more jobs will necessarily be lost;
- long-term incapacity for work if your employee has been ill or incapacitated for work continuously for two years or more;
- malfunctioning when you can demonstrate with motivation that your employee is unsuitable for the performance of his duties;
- culpable acts or omissions when your employee behaves (seriously) culpably at work;
- disrupted employment relationship if reinstatement of the employment relationship is no longer possible and dismissal is inevitable;
- frequent absenteeism if your employee regularly does not come to work, is sick or has disabilities, and this has unacceptable consequences for your business operations;
- dismissal for residual grounds if the circumstances are such that it is not reasonable for you as an employer to allow the contract with your employee to continue;
- conscientious objection to work when you have sat around the table with your employee and have come to the conclusion that the work cannot be performed in an adapted form and reassignment is not an issue.
Since 1 January 2020, the law has an additional ground for dismissal, namely the cumulative ground. This means that you as an employer can also dismiss your employee if circumstances from several grounds for dismissal give you sufficient reason to do so. However, as an employer, you must not only base your choice for dismissal on one of the aforementioned legal grounds, but also prove and substantiate its existence. The choice for a specific ground for dismissal also entails a specific dismissal procedure.
Dismissal procedure
Do you opt for dismissal for business reasons or for incapacity for work (longer than 2 years)? In that case, you as an employer must apply for a dismissal permit from the UWV. To be eligible for such a permit, you must properly motivate the reason for the dismissal of your employee. Your employee will then have the opportunity to defend himself against this. The UWV then decides whether or not the employee can be dismissed. If the UWV grants permission for dismissal and your employee does not agree, your employee can submit a petition to the subdistrict court. If the latter finds that the employee is in the right, the Subdistrict Court can decide to reinstate the employment contract or to award your employee compensation.
Are you going to dismiss for personal reasons? Then the way of the subdistrict court should be followed. This is not an easy road. As an employer, you must have built up an extensive file on the basis of which it can be demonstrated that dismissal is the only option. Only then will the court grant you approval for the request to terminate the employment contract with your employee. Are you submitting such a cancellation request? Then your employee is free to defend himself against this and to state why he does not agree with the dismissal or why your employee believes that he should be eligible for severance pay. Only when all legal requirements have been met, the Subdistrict Court will proceed to dissolve the employment contract.
However, by means of a dismissal by mutual consent, you can avoid going to the UWV as well as the proceedings before the subdistrict court and thus save costs. In that case, you must reach proper agreements with your employee through the negotiations. When you have made clear agreements with your employee, the relevant agreements will then be recorded in a settlement agreement. This may, for example, contain a regulation on what severance payment your employee will receive and whether a non-competition clause applies. It is important that these agreements are legally properly recorded on paper. That is why it is wise to have the agreements made checked by an expert lawyer. Incidentally, your employee has 14 days after signing to return to the agreements made.
Points for attention in case of dismissal
Have you decided to dismiss your employee? Then it is also wise to also pay attention to the following points:
Transition Fee. This form pertains to the minimum statutory compensation to be determined according to a fixed formula that you owe your permanent or flexible employee when you proceed with dismissal. With the introduction of the WAB, the accrual of this transition payment takes place from the first working day of your employee and the on-call workers or employees in the probationary period are also entitled to a transition payment. However, on the other hand, the increased accrual of the transition payment for your employees with an employment contract longer than ten years will be cancelled. In other words, it becomes “cheaper” for you as an employer, in other words easier to fire an employee with a long-term employment contract.
Fair compensation. In addition to the transition payment, as an employee, you may also owe extra severance pay to your employee. This will especially be the case if there is serious culpable act on your side. In the context of this act, for example, the dismissal of an employee without a valid dismissal reason, the existence of intimidation or discrimination. Although fair compensation is not an exception, it only concerns special cases in which the court will award this fair compensation to the employee. If the court awards your employee fair compensation, it will also determine the amount on the basis of the situation.
The final bill. At the end of his employment, your employee is also entitled to payment of the accrued vacation days. How many vacation days your employee is entitled to, depends on what has been agreed in the employment contract and possibly the CLA. The statutory holidays to which your employee is in any case entitled are four times the number of working days per week. At the bottom of the line, you only have to pay the employee the accrued vacation days, but not yet taken. If your employee is also entitled to a thirteenth month or a bonus, these points must also be discussed in the final statement and paid out by you.
Are you an employer who intends to dismiss your employee? Then contact Law & More. At Law & More we understand that dismissal procedures are not only complex but can also have drastic consequences for you as an employer. That is why we take a personal approach and together we can assess your situation and the possibilities. On the basis of this analysis, we can advise you on the correct next steps. We are also happy to provide you with advice and assistance during the dismissal procedure. Do you have questions about our services or about dismissal? You can also find more information about dismissal and our services on our site: Dismissal.site.