An employee can in terms of Dutch Labour Law be summarily dismissed in the instance of serious misconduct or incapacity.
The question will always be whether the employee-employer relationship is so intolerable that that it can not be continued. Dutch Labour Law will evaluate whether it is fair to expect an employer to continue the employment relationship relating to the level of the misconduct or incapacity of the employee. (Article 7:678-1 of the Dutch Civil Code).
Issues to be considered by managers to ensure fair labour practices
A manager must always consider all facts involved in a unbiased way.
It is recommended that the manager must write a report on the elements/facts that were considered. This will enable the manager to provide fair and valid reasons in the notice of summary dismissal.
The following elements must be considered be the manager:
The circumstances of the misconduct or poor working performance of the employee
- Consider every case on its own merits,
- The specific circumstances surrounding the case will determine if the case will be considered as serious (urgent),
- The work record of the employee must be considered. It is of crucial importance that all instances of misconduct and poor work performance must be noted in writing. Previous instances of similar misconduct or poor working performance must be taken in account,
- Any remedial steps the the employer took previously to address the misconduct or poor working performance must be considered,
- Identify any trends in the conduct of the employee. A specific occurrence may not be seen as serious misconduct but a trend may warrant a summary dismissal,
- Was the employee warned previously that his/her conduct is not acceptable and did the employee maybe received a final written warning,
- Consider how similar cases of misconduct or poor working performance was handled with other employees in the past. The employer must ensure that instances of misconduct or poor working performance must be handled in a consistent manner. All employees must be treated equally.
- It may be that an employment contract, a collective labour agreement or internal regulations/ prescriptions pertinently prescribes that certain misconduct must be seen as serious. This will however not always be a valid reason for summary dismissal. In terms of Dutch Labour Law the specific circumstances of the case must be considered before it can considered as an urgent reason for dismissal. If there is not a valid reason that a specific action warrants an urgent dismissal the stipulation will have no legal force.
- Did the employer act in an unacceptable manner or was misconduct of a fellow employee the reason for the actions of the employee. In these circumstances it may be that the employee can not be summarily dismissed for urgent reasons,
- The possible effect of the misconduct or poor working performance on the reputation of the employer must also be considers, eg bad press coverage. It will also have a aggravating effect on the decision if the actions of the employee may lead to possible criminal charges against the employer,
- The job function of the employee that committed misconduct or poor working performance will also play an important role in considering if it is an urgent reason for dismissal. In some functions a zero tolerance policy will be applicable. Examples are a taxi driver using alcohol or a air traffic controller that sleeps on duty. But the Labour Law principle that the misconduct can only be seen as serious after all the circumstances are considered is also here applicable,
- The personnel circumstances of the employee must also considered such as his/her length of employment, personal circumstances, the effect that it will have if he or she is dismissal and the employee age and if he/she is near retirement.
Possible urgent reasons to summary dismiss an employee
a. when the employee has mislead the employer at the conclusion of the employment agreement by showing false or forged testimonials or by deliberately providing false information about the way in which his previous employment ended;
b. when the employee seriously seems to lack the competence or the capability to perform the work to which he has engaged himself;
c. when the employee, despite warning, takes to drunkenness or other dissipated behavior;
d. when the employee makes himself guilty of theft, embezzlement, deceit, fraud or other indictable offences as a result of which he becomes unworthy of the employer’s trust;
e. when the employee batters, crudely insults or seriously threatens the employer, his family members or other employees;
f. when the employee tempts or tries to tempt the employer, his family members or other employees to perform or participate in actions contradictory to law or good morals;
g. when the employee deliberately, or despite warning, recklessly damages the property of the employer or exposes it to serious danger;
h. when the employee deliberately, or despite warning, recklessly exposes himself or others to serious danger;
i. when the employee makes public characteristics regarding the household or enterprise of the employer which he was expected to keep confidential;
j. when the employee persistently refuses to comply with reasonable instructions or orders given by or on behalf of the employer;
k. when the employee crudely neglects the obligations imposed on him by the employment agreement;
l. when the employee deliberately or because of reckless behavior becomes or remains unable to perform the contracted work.