One of the ways to terminate an employment contract is by entering a resolutive condition. But under what conditions may a resolutive condition be included in an employment contract, and when does the employment contract end after that condition has occurred?
What is a resolutive condition?
When drafting an employment contract, contractual freedom applies to the parties. This means that the parties themselves may determine what is included in the agreement. For example, there is the possibility of having a resolutive condition in the employment contract.
A resolutive condition means that a provision is included in the contract containing an event or condition. When this event occurs, or the condition is triggered, the employment contract ends by operation of law. This means that the contract ends without the need for notice or dissolution.
When using a resolutive condition, it must be uncertain that the condition will take effect. It is, therefore, not sufficient that it is already certain that the condition will take effect, but only that the time at which it will take effect is still being determined.
In which employment contract can a resolutive condition be included?
For an open-ended employment contract, a resolutive condition may be included. The employment contract continues to exist (without the dissolving condition taking effect) indefinitely. Only when the resolutive condition has occurred the employment contract ends by operation of law.
The same proposition applies to a fixed-term employment contract. A resolutive condition may be included in the contract. The employment contract exists like a regular contract (without entry of the resolutive condition) for the duration of the contract. Only when the resolutive condition has occurred the employment contract ends by operation of law.
Examples of a resolutive condition
An example of a resolutive condition is obtaining a diploma. For example, an employer may be obliged to employ employees with a specific diploma. In that case, the employment contract may contain a resolutive condition stating that the employee must have the diploma within a certain period. If he has not obtained the diploma within that period, the employment contract ends by operation of law.
Another example is the possession of a driving license. If a taxi driver’s license is taken away, which is included as a resolutive condition in his employment contract, it ends by operation of law.
A final example is the obligation to provide a VOG statement. In certain positions (such as teachers, teaching assistants, and nurses), a certificate of good conduct is required by law.
It can then be included in the employment contract that the employee is obliged to issue a VOG within a certain period. Does the employee fail to do so? Then the employment contract ends by operation of law.
What are the requirements for including a resolutive condition?
A resolutive condition may only be included in an employment contract under certain conditions.
- First, the condition must be objectively determinable. It must be clear to everyone when the resolutive condition took effect. There should be no room for a view of the employer (for example, the employment contract ends by operation of law if the employee fails to perform).
- Secondly, the condition must not violate the dismissal prohibitions under dismissal law (e.g., the pre-condition must not read: the employment contract ends by operation of law in case of pregnancy or illness).
- Third, it must be uncertain that the condition will occur. Thus, it should not be the case that there is a presumption that the condition will occur, and only the time of occurrence is unclear.
- Lastly, the employer must invoke the resolutive condition immediately once it has occurred. Thus, no notice period applies.
Do you have further questions in the context of the resolutive condition or general questions about an employment contract and would like to receive advice? If so, please get in touch with us. Our employment lawyers will be happy to help you!