Author: André Beukes

My experience includes to manage organizational change processes, strategic competence management, strategic employee relations, personnel selection, mediation and general personnel practices. I am experienced to act as a consultant, policy advisor and problem solver in demanding multi-cultural environments. My studies in International and European Labour Law and International HR equipped me to manage Human Resource Management policies and principles, new tendencies and applications in the holistic practices and principles of an organisation with exceptional success. http://linkd.in/HxkpjJ

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Dismissal of an employee for refusal to work / Dutch Labour Law

Dutch Labour Law for Managers #9

Dutch Labour Law. Be prepared and informed.

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Extract

This Dutch Labour Law case will enlighten managers whether an employee can be dismissed if he/she refuses to work or follow orders.

The employee (complainant) approached the court because he was summary dismissed due to alleged refusal to work. The employee was a cleaner and he refused to perform duties at a specific client. His supervisor informed him that “if he does not want to work it is better that he went home”. The worker left, but came back after 10 minutes and requested a free day.  The supervisor again requested the employee to work because the company urgently needed the services of the employee. After the employee refused to resume duty he was summary dismissed for refusal to work. The employer took the fact in to account that that the work schedule an efficiency of the company was negatively affected.  The employee also claimed that there was outstanding salary that the employer still owes him.

The legal question before the court was: is the refusal to work a valid urgent reason for dismissal in terms of artical 7:678 point 1 of the Dutch Civil Code?

Finding

The court found that the employee was unlawfully dismissed.

In alleged unfair dismissal cases the onus is on the employer to proof that the dismissal was fair and legal.

Summary dismissal may only be used as a last remedy in exceptional and serious instances where the employer has no other option.

An urgent reason for dismissal in terms of article 7:678 point 1 of the Dutch Civil Code is where it is unbearable for the employer to continue the employment contract with the employee due to the actions of the employee.

In events of employee conduct of a serious nature the employer is responsible to discuss the issue with the employee and place it on record.  Where the employee is summary dismissed for misconduct of a serious nature the onus of proof is on the employer to indicate that the dismissal was justified.

All surrounding facts must be considered by the employer before a decision of summary dismissal can be taken. The employer must also provide evidence that all the surrounding facts were considered.

The employer claimed that the dismissal was based on several negative comments of the employee that had a detrimental effect on the work environment and that the employee was a problem worker. According to the employer the employee decided his work hours himself in contradiction with the instructions of the employer.

The judge found that there is not enough factual evidence that the conduct of the employee was serious.

The judge indicated that before an employee can be dismissed for failing to follow instructions the employee must be warned with a clear indication what the consequences will be if he does not fulfill the instruction.  In this case the employee did not receive an adequate warning.

Good to know

Insubordination is defined as defiance of authority or refusal to obey orders.

An insubordinate employee is one who purposely ignores her manager’s direct orders. Depending on the insubordination’s severity and the number of times it’s occurred, it may or may not be a dischargeable offense. Often, insubordination may be the result of inexperience or bad judgment that can be remedied with a quick word. When it’s chronic and willful, it’s a different matter entirely.

Physical Confrontation

If an employee physically assaults or intimidates a manager or other superior in the workplace, that is grounds for immediate dismissal.

If this occurs, the details surrounding the event should be documented immediately. If necessary, call the police. It may be wise to have security or another staff member escort the agitated employee off the grounds, with the understanding that he can come back later to gather his belongings. Taking a strong stand against workplace violence is essential.

Verbal Abuse

Verbal abuse, such as the use of profanity and insults, may or may not be grounds for dismissal.

Commonly referred to as “shop talk,” the manager must decide whether the language was out of the ordinary. If not, then insubordination may not have been intended. Also, if the manager incites insubordination by verbally abusing employees, that’s an extenuating circumstance that may force the manager to undergo performance training, as opposed to the summary firing of the “insubordinate” employee.

Another cause for dismissal due to insubordination is the refusal to perform a manager’s direct order. This may manifest itself in a verbal or nonverbal refusal. It can also be interpreted as an “unreasonable delay in completing work. Because the refusal or delay may result from the employee’s misinterpreting the instructions, employers should carefully consider whether the incident constitutes true insubordination.

As a result, each incidence of refusal or delay should be carefully documented in an employee’s file for the purpose of verifying a history of insubordinate conduct.

Dealing with Insubordination

Because most instances of insubordination result from a non-physical threat, it’s wise to take the time to correct the employee’s behaviour privately instead of dismissing him. If the manager feels that there is a pattern of willful disobedience, he/she should take care to document it and report it to her own superior.

Taking the time to carefully evaluate employee actions and motivations is an essential step for the manager to take.

 

RECHTBANK ROTTERDAM

Case: 200.186.274/01

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Link to case

Tags:  summary dismissal, insubordination, refusal to work

 

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‘Brexit’ Vote Has European Workers in Britain Unsure of Future: nytimes

 

LONDON — Filipe Graca hovered over an espresso machine at the British food chain Pret A Manger and frothed out a cafe latte for a waiting customer. Until last year, he had struggled to find any kind of a job in his native Portugal. But when he arrived in London, he was able to work almost right away.

While European nationals working in Britain make up just 5 percent of the 31.5 million-strong work force, compared to 11 percent from overseas, they have become a visible flash point in the overall debate about whether and what type of immigration really works for Britain.

The “leave” camp argues that it has been too easy for “migrant workers” from Europe to waltz into the country and take British jobs. “We have absolutely no power to control the numbers who are coming with no job offers and no qualifications from the 28 E.U. countries,” Boris Johnson, the former London mayor, said in a recent speech rallying for a Brexit.

British businesses have faced criticism for hiring them. Greencore, Britain’s biggest sandwich maker, drew fire for seeking hundreds of Hungarian employees for a new sandwich factory in Northampton, an hour north of London. Pret A Manger, whose stores dot street corners across Britain, has been faulted for employing relatively few British workers. (A spokesman for Pret A Manger declined to comment.)

Critics also point to the low wages that many E.U. workers seem willing to take in labor-intensive industries, especially people fleeing struggling economies. Nearly 40 percent of the more than two million European workers in Britain hail from low-wage nations such as Poland and Romania. And since a debt crisis struck the European south, growing numbers of Italians, Greeks, Spanish and Portuguese have left for a chance at any employment in Britain.

Read more.

Losing your job as an expat in the Netherlands

lfjobLosing your residence right

With an employment-based residence permit (such as a highly skilled migrant permit or a permit for paid employment), premature employment termination does not only mean losing your source of income.

It can also result in losing the right to stay in the Netherlands. In order to give you a chance to prolong your stay, Dutch law provides for a three-month search period which allows you to search for a new job.

Three-month search period

The main requirement for highly skilled migrants to qualify for a search period is that your employer has taken initiative for the termination and you did not lose your job “culpably”.

That means that if you’re at fault for getting fired, you don’t get the three-month search period.

Culpability or bearing blame

The termination will be considered culpable if it concerns a summary dismissal (getting fired for serious misconduct, for example) or a notice of dismissal that you did not protest.

Termination by mutual consent, in the form of a settlement agreement is not considered a culpable termination provided that the settlement agreement explicitly states that the employee was not at fault and that it was the employer’s initiative to terminate the employment contract.

The element of culpability is assessed along the same lines as how your eligibility for unemployment benefits (WW uitkering) is determined.

If you have a regular residence permit for employment, you’re in a slightly better position than highly skilled migrants because you will be granted a period of three months regardless of the termination grounds.

– See more at: http://www.iamexpat.nl/read-and-discuss/career/articles/losing-your-job-expat-netherlands#sthash.xq1aaiX0.dpuf

Overseas students: new work visa rules make UK ‘challenging’

International students may be put off from applying to UK universities by “challenging” new restrictions on employing foreign graduates, an expert on immigration law has warned.

While higher education has won several exemptions from new proposals to limit the flow of skilled workers from outside the European Union into the UK, the new rules may still damage the university sector by increasing the perception that the UK is “too challenging” for foreign graduates who want to compete in the labour market against home-grown staff, said Katrina Cooper, a partner at PricewaterhouseCoopers Legal, who specialises in immigration law.

Several leading employers are now looking to close their graduate recruitment schemes to non-EU nationals thanks to the extra complexity surrounding employing foreign nationals, said Ms Cooper.

Such effects of the new proposals may lead many foreign students to opt for universities in those countries with more welcoming visa regimes, thereby harming the UK’s ability to recruit top postgraduates, Ms Cooper argued.

“These changes will give other jurisdictions, such as Australia, Canada and the US, leverage to pick up the best and brightest global talent as the perception will be that the UK is too challenging,” said Ms Cooper.

Under the reforms announced in Parliament on 24 March by immigration minister James Brokenshire, the minimum salary for experienced skilled migrants from outside the EU to gain a visa will rise from £20,800 to £30,000 in April 2017.

Non-EU graduates of UK universities are already granted five years to reach the threshold – but the rise in the threshold significantly raises the bar on the salary they must achieve to avoid being forced to leave the country.

“This could have a reputational impact on the higher education sector as it may put off students from wanting to do a PhD in the UK if there is a chance that they cannot be sponsored due to salary issues post-completion of their PhD,” said Ms Cooper.

However, the new changes may also push up the wage bills of some universities if the proposed annual £1,000 immigration skills charge on employers using non-EU nationals goes ahead, she said.

While an exemption for PhD-requiring roles will apply to most non-EU staff employed in higher education, there may be a “small proportion” of non-PhD qualified university staff subject to the new levy, Ms Cooper said.

Fears that the £30,000 salary threshold might affect large numbers of lower-paid postdoctoral researchers are likely to be unfounded as relatively few salaries in this area were below the threshold, she added.

A Universities UK spokesman agreed with this analysis, saying that the sector body did “not expect the changes to minimum salary requirements to have a major impact on the sector”.

“The vast majority of those on Tier 2 visas are employed in academic positions with salaries above the minimum thresholds set out by the government,” he added.

Universities would “review workforce planning and pay scales to ensure they don’t lose talented staff from outside the EU as a result of these changes”, he continued. “We are glad that the government has listened to the evidence and arguments provided by Universities UK and others, and has exempted jobs requiring PhDs from the proposal to levy an ‘immigration skills charge’ on employers.”

Source
jack.grove@tesglobal.com

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10 Issues raised at the hearing on the Dutch Work and Security act in the Dutch Second Chamber, 03-02-2016

Dutch Managers must decide if they are going to follow the easy or the difficult route with the management of the Work and Security act. The easy route may seem difficult and expensive in the beginning, but the benefits that it will yield in terms of personnel engagement and labour relations can not be overestimated.

Easy:

Insure that sound Human Resource practices are in place. If the company does’t have the expertise, involve somebody that have the knowledge. Identify poor performance, poor conduct and disputes as early as possible and handle it before it became critical. See your personnel as human capital, provide them with quality skills and invest in quality career opportunities in the company.  Personnel with quality skills have a better chance to receive permanent employment.

Difficult:

Ignore personnel problems and mainly focus on the performance of the company. Have the management style of: either an employee fits in or he’s out. Then transfer the problem to a labour lawyer, the UWV or a judge. As indicated at the hearing in the Second Chamber, the external procedure is expensive and complicated.

Dutch employers were spoiled in the previous Labour Law dispensation where courts and other third parties solved their personnel problems.

Evert Verhulp, professor in Labour Law at the Universty of Amsterdam hit the nail on the head that the new Dutch Labour Law dispensation relating dismissal is an improvement because it forces employers to handle personnel issues with care. He believes that the stricter approach used by UWV and courts in the evaluation of the employment record of the employee and steps taken by the employer is logical because employers must have effective personnel policies in place.

I agree with prof. Verhulp that although there is teething problems with the Dutch Work and Security act it will lead to improved labour relations.

Issues raised at the hearing on die Dutch Work and Security act that are important for Dutch managers:

    1. The situation of employees improved with the new dismissal legislation as it is more fair for the individual worker.
    2.  The new dismissal procedure is less expensive relating to compensation but more complicated for employers.
      • The question must be asked why is the new system seen as complicated:
        • Is it because it is a new procedure?
        • Is the employer not equipped to manage the new procedure? Then re-training is the solution.
        • Is the employer not prepared? Pro-active Human Resource practices must be implemented.  
    3.  The new dispensation did not improve the situation of temporary workers. Employers are now scared to employee employees permanently.
      • Is this a valid perception on the side of employers?
      • Is this perception not the result of ill-informed and unprepared employers?
      • Is it really risky to employ quality workers in quality jobs?    
    4. The remark was made the perception exists that permanent employment is something of the past, but there is still a need for permanent employment from the side of the workforce.
    5. That different sectors have different issues with the new legislation. Medium and small companies experience more difficulties.
      • The reason for this tendency is that larger companies have Human Resource and Labour Law expertise on board. Human Resource Management expertise is as critical as Information Technology expertise in a company. Where management doesn’t have the HR and Labour Relations expertise, an outside consultant must be involved. 
      • Re-training of managers may be necessary, sound Human Resource practice is as important as sound financial management. 
    6. There is a trend of silent employment contracts (slapend dienstverband) where an employer does not formally end the employment relationship after a long term ill employee received remuneration for 24 months.  The reason for this is that if the employment contract is ended after 24 months the employee is also entitled to a transition benefit.
      • The solution may be that a long time ill employee that received remuneration longer than 12 months is not entitled to a transition benefit.
      • Minister Asscher indicated the intention to reduce the period that a small company must remunerate an long term employee from 24 to 12 months.
    7. Some delegates recommended that the scope of a judge in dismissal cases must be extended to include other reasons to end the employment contract other than the prescribed (permitted) reasons. This will enable judges to to consider all the facts where it is clear that the employment relationship is not reparable.
    8. The issue that a judge can award a higher compensation as the prescribed transition benefit was discussed. The reason for the stipulation is to allow the judge to consider every dismissal case on it’s own merits. Some delegates have the opinion that there must be a guideline for judges in terms of figures.
    9. Some delegates felt the two (2) months limit that a employee must approach a court for relieve in dismissal cases must be extended.
    10.  The general viewpoint was that it is premature to declare the the new labour law dispensation as unworkable and ineffective.

 

 

 

 

 

 

 

Mercedes-Benz says workers are better than robots

The rise of robotic workforces may have struck fear into the hearts of employees and HR professionals alike but one luxury car maker says it’s changing its mind on the contentious topic – real men and women are more capable, in this case at least.

Mercedes-Benz is bucking modern HR trends in the manufacturing industry by trading in some of its assembly line robots in favour of actual people.

“Robots can’t deal with the degree of individualisation and the many variants that we have today,” explained Markus Schaefer, head of production at Mercedes-Benz.

According to Schaefer, the robots particularly struggle when it comes to the company’s S-Class saloon which offers a phenomenally wide range of customization – from various wheels, decals and carbon-fibre trims to heated or cooled cup holders.

“The variety is too much to take on for the machines,” he told Bloomberg. “They can’t work with all the different options and keep pace with changes.”

While it would take weeks to reprogram and realign a robot, a skilled human workforce can change a production line in a weekend.

“We’re moving away from trying to maximise automation with people taking a bigger part in industrial processes again,” said Schaefer. “We need to be flexible.”

While the company is recognizing the value of human flexibility and adaptability, it certainly isn’t abandoning robots altogether. Instead, it’s shifting a system it calls “robot farming.”

The set-up equips employees with an array of smaller, lighter machines whereas previously the robots would have operated behind a safety fence, in isolation from human workers.

The change will mean humans and robots working side-by-side on the assembly line, operating as a team to increase productivity and reduce waste.

“We’re saving money and safeguarding our future by employing more people,” stressed Schaefer.

http://www.hrmonline.ca/hr-news/mercedesbenz-backing-people-not-robots-203797.aspx

DUTCH LABOUR LAW IN ENGLISH. LET ME ASSIST YOU!

The era of the average worker is over!

WHAT does your employer owe you? For your work do you deserve (in addition to your wages) job security, excellent health care, and pension in retirement? We have a romantic notion that such benefits used to be a part of employment. The company man was the ideal, working for a large manufacturing firm for most of his (inevitably his) career and receiving a variety of forms of compensation in exchange for his life’s work. Is this still a realistic expectation? Health care inflation and longer life expectancy mean that a progressively larger share of compensation comes from benefits. This rising expense is part of the reason real wages have stagnated for many Americans.

I wonder if this situation benefits employees anymore either. In the modern and more global labour market the nature of work has changed. It’s popular to say employees can no longer coast on average skill levels, according to Thomas Friedman:

In the past, workers with average skills, doing an average job, could earn an average lifestyle. But, today, average is officially over. Being average just won’t earn you what it used to. It can’t when so many more employers have so much more access to so much more above average cheap foreign labor, cheap robotics, cheap software, cheap automation and cheap genius. Therefore, everyone needs to find their extra — their unique value contribution that makes them stand out in whatever is their field of employment. Average is over.

Read further in The Economist