Labor Attorney

Summary Dismissal According To Dutch Law

Written on July 27, 2010 by admin

Filed Under: Labor Law

A summary dismissal is the gravest means in Dutch Labor law. It terminates the employment contract and therewith the obligation to pay salary on the spot. Also, when an employee is confronted with a lawful summary dismissal he loses the right of unemployment benefits and a severance pay.

Because of the far-reaching consequences for the employee, the Dutch law contains serious requirements that need to be fulfilled before a summary dismissal can be performed lawfully. In case these conditions are not met, the employee can either render it null or claim compensations. In the event of lawful nullification, the employment continues and wages have to be paid. In practice this leads to conflicts in which the employee claims the summary dismissal is null and the employer claims it is valid. These conflicts often get settled by lawyers, but if this seems impossible, the judge will have to decide based on all relevant circumstances and below requirements. Basically, four conditions need to be fulfilled for a lawful summary dismissal:

1- The dismissal should be granted without delay. This implies that the employer has to act swiftly after discovery of the ground for dismissal and cannot fire an employee on the spot based on old knowledge. However the employer does have some time for (legal) investigation.

2- De ground for dismissal should be explained simultaneously. It is not allowed to add grounds or to change the announced ground for summary dismissal later. It is common practice to first fire on the spot verbally and thereafter, within one or two days, confirm the dismissal itself as well as the grounds and circumstances that led to the dismissal by registered letter. The explanation should be such that no doubts can exist on the reproaches that form the basis of the dismissal.

3- The dismissal should be based on a so-called ‘urgent cause’. This is the legal requirement that creates most discussions in practice. The gist of it is that the ground for dismissal needs to be so grave that, both objectively and subjectively for the involved employer it cannot reasonably be demanded to continue the employment. Examples of frequently used possibly urgent causes are: theft, embezzlement, fraud, lying on work related subjects such as working hours and CV, refusal to work, coming too late frequently despite warnings, sexual intimidation, severe insults, threats and physical violence. The Dutch law also mentions some non-exhaustive examples. To judge whether in a concrete case an urgent cause for summary dismissal is present, all relevant aspects have to be considered. It is wise to, in this situation, consult a legal advisor who is familiar with jurisprudence in these cases.

4- Finally, the interests of both parties should be considered in which any personal circumstances of the employee should be involved. This requirement does not derive directly from the law, but from jurisprudence of the Dutch Supreme Court. If the consequences of a summary dismissal for the employee are too grave compared to the interest of the employer, the dismissal may not hold out in court. This requirement sometimes comes up when long-standing employments, illness or certain circumstances in the private life of the employee are involved.

Related Topics :

• Dutch Labor Law – Netherlands