In the October issue of Jachtbouw Nederland, a bird’s eye view was given of the changes that the Work and Security Act (WWZ) would entail for employment law as of 1 January and 1 July 2015. In the meantime, the Act has been implemented. I will elaborate on the end of the employment contract, as now laid down in the law.
Dutch dismissal law applies a so-called ‘preventive dismissal test’ and as of 1 July 2015 this is exhaustively listed in article 7:696 paragraph 1 in conjunction with paragraph 3 of the Dutch Civil Code. The preventive dismissal test means that a third ‘party’ tests the reasonableness of the dismissal. Apart from a few exceptions (e.g. the employee entitled to a pension), every dismissal or termination must be tested for reasonableness by the UWV or the subdistrict court.
It is important that for each termination or dissolution it must be determined whether there is reasonable cause. In addition, it applies that the employee cannot be placed in another position within a reasonable time, whether or not with the help of training, or is not part of the reason. This re-employment does not apply in a situation of the so-called e-ground mentioned below, or in the case of a spiritual office. In other words, there will always be an assessment of whether an employee might be able to remain employed in another position with additional training.
So what are these restrictive grounds for dismissal that will apply as of July 1, 2015?
Business economics The necessary shedding of jobs, viewed over a future period of 26 weeks, as a result of business economics. Please note! If the employer wishes to hire someone for the same job within 26 weeks after the dismissal of the employee, he must first make an offer to the dismissed employee.
If an employee has still not recovered after (in principle) a period of two years, and this can also not be expected within 26 weeks, the employer may dismiss the employee.
If the employee is regularly unable to perform the stipulated work due to illness or disability and this has serious consequences for business operations, this is a reasonable ground for termination. However, it is examined whether the employer has taken sufficient care of the working conditions and here too, no change in the situation can be expected within 26 weeks.
The unfitness of the employee to perform the stipulated work, other than due to illness or disability. Please note! The condition is that the employee has timely warned the employee that he is not functioning and has given him the opportunity to improve his performance.
Culpable act or omission of the employee.
This must be so serious that the employer cannot reasonably be required to allow the employment contract to continue. This also includes the so-called urgent reasons for instant dismissal.
When the employee refuses to perform stipulated work due to a serious objection of conscience, although the work cannot be performed in an adapted form.
Disturbed working relationship.
The working relationship is so disrupted that the employer cannot reasonably be required to allow the employment contract to continue.
Circumstances other than those referred to in the grounds above, which are such that the employer cannot reasonably be required to allow the employment contract to continue. For example, an employee in prison or the absence of a work permit.
Appearances are deceptive.
Superficially, not much seems to have changed compared to the situation before July 2015, but appearances can be deceptive. Under the old dismissal system, the subdistrict court could proceed to dissolve the contract in the event of ‘changes in circumstances of such a nature that, in fairness, the employment contract should end immediately or after a short period of time’.
This was a very open standard, which allowed the court to take all circumstances of the case into account. As of 1 July, the dismissal of the employee must fit within one of the aforementioned grounds. It seems as if the article about the disrupted working relationship is the ‘stopgap’, so that a kind of open grounds for dismissal is obtained as before, but that is not the intention.
No freedom of choice.
Another thing that has changed from before is that an employer no longer has the choice of going to the UWV or the subdistrict court. Before July 1, the employer could, for example in case of dismissal on economic grounds, both go to the UWV and to the subdistrict court. The subdistrict court applied the same criteria as the UWV. The UWV route was attractive because the UWV did not award severance pay and the subdistrict court usually did. If an employee had been in service for a very long time, this compensation could be high. As of 1 July, that option is no longer available. The employer is obliged to go to the UWV if he bases the dismissal on economic circumstances or long-term disability, and to the subdistrict court if he bases the dismissal on the other grounds.
What does the above teach us? Even more than before, it is crucial for an employer to have the personnel files in order, because the chosen grounds for dismissal must be able to support the dismissal in itself. In other words, if the choice is made to dismiss an employee for malfunctioning, there must be a carefully constructed personnel file that describes exactly what has been done to improve the employee’s functioning and why he is malfunctioning.
The subdistrict court can no longer ‘lump all the arguments together’ and make a decision based on that. So make sure you have good, regular and well-documented performance interviews and a well-documented personnel file in case of illness, for example, to be able to show that the employer has done everything to support the employee.
In a subsequent article, I will elaborate on other changes that the WWZ has brought about.Wet Werk en Zekerheid nader toegelicht