Under certain circumstances, termination of the employment contract, or resignation, is desirable. This may be the case if both parties envisage resignation and conclude a termination agreement in this regard. You can read more about the termination by mutual consent and the termination agreement on our site: Dismissal.site. In addition, termination of the employment contract can be considered desirable if only one of the parties requires resignation. For example, the employee may feel the need, for various reasons, to terminate the employment contract against the will of the other party, the employer. The employee has a number of options for this: terminate the employment contract by means of notice or have it terminated by submitting a request for dissolution to the court. In both cases, however, the employee must bear in mind certain limits that the right places on these resignation options.
Termination of employment contract by notice. A unilateral termination of the employment contract is also called termination by notice. Does the employee opt for this method of resignation? Then the law prescribes a statutory notice period that must be observed by the employee. Regardless of the duration of the agreement, this notice period is usually one month for the employee. The parties are allowed to deviate from this notice period in the employment contract. However, if the term to be observed by the employee is extended, care must be taken to ensure that the term does not exceed the six-month limit. Does the employee observe the agreed term? In that case, the termination will take place towards the end of the month and the employment will end on the last day of the calendar month. If the employee does not comply with the agreed notice period, then the termination by notice is irregular or in other words liable. In that case, notice of termination by the employee will put an end to the employment contract. However, the employer no longer owes wages and the employee may owe compensation. This compensation usually consists of an amount equal to the wages for the part of the notice period that has not been observed.
Having the employment contract terminated by the court. In addition to terminating the employment contract by giving notice, the employee always has the option to apply to the court in order to bring about dissolution of the employment contract. This option of the employee is in particular an alternative to immediate dismissal and cannot be contractually excluded. Does the employee opt for this termination method? Then he must substantiate the request for dissolution in writing and with compelling reasons as referred to in article 7: 679 or article 7: 685 paragraph 2 of the Dutch Civil Code. Urgent reasons are generally understood to mean (changes in) circumstances that result in the employee not being reasonably expected to allow the employment contract to continue. Are such circumstances relevant and does the Subdistrict Court grant the employee’s request? In that case, the Subdistrict Court may terminate the employment contract immediately or at a later date, but not with retroactive effect. Is urgent cause due to intent or fault of the employer? Then the employee can also claim compensation.
Has the employee decided to resign and terminate the employment contract with his employer? Then this usually takes place in writing by means of a notice of termination or resignation. In such a letter it is customary to state the name of the employee and the addressee as well as that and when the employee terminates his contract. In order to avoid unnecessary disagreements with the employer, it is advisable for the employee to close his letter of termination or resignation with the request for a confirmation of receipt and to send the letter by e-mail or by registered mail.
However, the written settlement of dismissal is not mandatory and often serves for administrative purposes. After all, termination is a form-free legal act and can therefore also be effected verbally. It is therefore possible for the employee to inform his employer only verbally in a conversation of the termination of the employment contract and thus dismissal. However, such a method of resignation has a number of drawbacks, such as the uncertainty about when the notice period starts. Moreover, it does not give the employee a license to subsequently return to his statements and thus easily avoid resignation.
Obligation to investigate for the employer?
Does the employee resign? Case law has shown that in that case the employer cannot simply or too quickly trust that this is what the employee actually wants. In general, it is required that the statements or conduct of the employee clearly and unambiguously demonstrate his intention to dismiss. Sometimes further investigation by the employer is required. Certainly, in the case of verbal resignation of the employee, the employer has an obligation to investigate, according to the Dutch Supreme Court. On the basis of the following factors, the employer must first investigate whether dismissal was actually the intention of his employee:
- The employee’s state of mind
- The extent to which the employee realizes the consequences
- The time the employee had to reconsider his decision
When answering the question whether the employee actually wanted to end the employment, a strict standard is used. If, after an investigation by the employer, it appears that dismissal was not really or actually the intention of the employee, then the employer cannot, in principle, object to the employee. Certainly not when “taking back” the employee does not harm the employer. In that case, there is no question of dismissal or termination of the employment contract by the employee.
Points of attention in case of resignation
Has the employee decided to proceed with resignation? Then it is also wise to pay attention to the following points:
Vacation. It is possible that the employee still has many vacation days available. Is the employee going to dismiss it? In that case, the employee can take the remaining vacation days in consultation or have them paid out on the date of dismissal. Does the employee choose to take his vacation days? Then the employer must agree to this. The employer can refuse the holiday if there are good reasons for doing so. Otherwise the employee will be paid for his vacation days. The amount that comes in its place can be found on the final invoice.
Benefits. The employee whose employment contract has been terminated will logically rely on the Unemployment Insurance Act for his livelihood. However, the reason why and the way in which the employment contract was terminated will influence the possibility of claiming unemployment benefits. If the employee resigns himself, the employee is usually not entitled to unemployment benefits.
Are you an employee and do you want to resign? Then contact Law & More. At Law & More we understand that dismissal is one of the most far-reaching measures in employment law and has far-reaching consequences. That is why we take a personal approach and we can assess your situation and the possibilities together with you. You can also find more information about dismissal and our services on our site: Dismissal.site.