What can dutch managers and HR managers learn from the recent Tokheim case? #dutchlabourlaw #summarydismissal
In terms of Dutch Labour Law employees can be summary dismissed in cases of serious misconduct. A non-exhaustive list of “urgent”reasons that an employee can be summarily be dismissed can be found in Section 7: 678 of the Dutch Civil Code.
Urgent reasons actually refer to serious misconduct that makes the employment contract between the employer and employee intolerable. The Dutch lawmaker used the word “urgent reasons” to refer to the situation where the work relationship deteriorated to such an unbearable level that the employee must urgently be removed from the work environment.
Summary dismissal is dismissal without notice. It does not require advance notice to the employee and wages are only paid to the time of dismissal. An employer has a legal right to summarily dismiss an employee without notice for serious misconduct or other conduct which justifies such dismissal.
The case before the court was for a temporary decision of the judge on the legality of the summary dismissal of the employee.
The employee that was summarily dismissed is the plaintiff in the case. The employee was on 1 November, 2000 employed by the employer and received a salary of 2,630.99 excluding benefits.
Mr (J) the HR Manager of Tokheim dismissed the employee verbally summarily on 23 September 2015 after he was was telephonically informed by the Supervisor: Tank Installations that Mr (V) from Ecocare a client of Tokheim informed him that the employee made certain defamatory statements against the management of Tokheim.
The employee received a notice of summary dismissal on 24 September, 2015 that stated the following:
The representative of the employee replied in writing that the employee appose the summary dismissal. He demanded that his remuneration must be reinstated and that he is available to return to work.
The court was requested to make a temporal finding before the main case, where evidence will be delivered, is finalized.
In the court application the employer requested the court to find against the summary dismissal and reinstate the remuneration of the employee until the case is finalized. The basis of the application was that there is no grounds to substantiate an urgent reason for dismissal.
The judge found that because the employer (Tokheim) will receive the opportunity to give evidence that the misconduct of the employer was indeed urgent and was a lawful reason for summary dismissal the case will not be finalized in a short period of time. It was ordered that the employee receive his remuneration from the date of dismissal until the court makes a finding.
The case was not investigated with due care. Although the alleged actions of the employee was serious and urgent, management in this case must still apply there mind before a decision of summary dismissal is taken,
Under Dutch law, employment contracts can be terminated with immediate effect for an ‘urgent’ cause, such as theft, fraud, or other very serious misconduct. A non-exhaustive list of acts that amount to urgent cause is provided in Article 7: 678 DCC. Other than when giving notice, it is not necessary to ask and obtain a permit from the Employee Insurance Agency (UWV).
Certain formal rules should be observed. The employer has the obligation to act with due care and take the employee’s interests into consideration. The employer also has an obligation to communicate the urgent cause to the employee and the termination should be effected as soon as possible after the employer became aware of the cause for termination. It is however allowed to seek legal counsel first and it is advisable to indeed discuss the facts with a lawyer specialized in Dutch employment law, who can also be of assistance to draft a letter in which the reason for dismissal is described.
Any termination of an employment contract for cause can lead to court proceedings, in which the employee will ask the court to declare the termination null and void. In such a case, the employee may be entitled to receive his or her salary from the date of improper termination until the employment agreement is terminated in a proper way (e.g., by obtaining approval from the Employee Insurance Agency (UWV) to give notice or a court decision). It is therefore customary that immediately steps are taken to make certain that the contract of employent will end. In a lot of cases the matter will be settled before further legal measures become necessary, as both parties usually prefer clarity above long lasting litigation.
André Beukes is an EU Management Consultant to international companies doing business in Europe. He provides clients with practical business support that makes a real difference doing business in the EU. “Put simply, I am here to help you meet your challenges. I believe in the importance of doing things correctly, meaning risks are reduced and problems are avoided.”