NL: Immediate dismissal: take into account the personal circumstances of the employee!

 

An immediate dismissal is a very drastic measure. After all, the employee loses his job, and thus his salary and other employment conditions (such as a lease car), with immediate effect. In addition, the employee will in principle lose his right to unemployment benefit and the statutory transition allowance, while in many cases he or she will owe compensation to the employer. The court therefore applies a strict standard when assessing an immediate dismissal.

Immediate dismissal requirements

An immediate dismissal therefore has very far-reaching consequences for an employee. It is for this reason that this dismissal is seen as a "last resort" and that the law imposes strict requirements on this. In short:

1. There must be an urgent reason; These are such acts, characteristics or behaviour of the employee that the employer can no longer reasonably be expected to continue the employment contract. Think, for example, of theft or fraud, physical violence, or falsifying diplomas required for the position; and
2. Immediate dismissal must take place without delay. This means as energetically as possible; an investigation into the urgent reason must therefore also be initiated and carried out as soon as possible and dismissal must be granted as soon as it is sufficiently clear that there is an urgent reason; and
3. The urgent reason must be communicated to the worker without delay; This enables the employee to respond substantively to the dismissal and to immediately assess whether it is justified for him to be summarily dismissed.

 

Urgent reason and personal circumstances of the employee

When assessing the urgent reason (step 1), the employer must take into account all the circumstances of the case, in relation to each other and in conjunction with each other. In doing so, the employer must also weigh the nature and seriousness of the urgent reason against the employee's personal circumstances. This may include the duration of the employment, the age of the employee, the way in which the employee has fulfilled the employment contract and (the consequences for) his (financial) (family) situation.

The fact that personal circumstances can be quite serious is also evident from a recent ruling by the Central Netherlands District Court. The employee in this case worked as a Service Advisor at a company specialized in the sale, lease and maintenance of motor vehicles. She had a fixed-term employment contract, which would automatically expire on 12 April 2023. In February 2023, it turned out that she had drawn up an invoice for maintenance on her own car and, moreover, for too low an amount. This was contrary to the rules in force, which were intended to prevent employees from gaining a financial advantage at the expense of her employer in this way. The employee was therefore summarily dismissed on 21 February 2023.

The employee was heavily charged by the court for drawing up this invoice himself, in violation of the applicable rules, moreover for too low an amount. However, the personal circumstances of the employee – of which the employer was aware – meant that the court nevertheless ruled that the summary dismissal was not valid. The employee had sold her home shortly before the dismissal in order to buy a new home. Due to the dismissal, the bank no longer wanted to provide her with a mortgage and the purchase agreement for her new home was dissolved. She also had no income, received no benefits and had a partner who was self-employed. As a result, the employee had to stay in a mobile home with four of her minor children. The employer could and should have taken this into account, according to the judge. The attitude of the employer: "right is right and wrong is wrong", was too short-sighted, according to the judge. This was all the more true now that the employer could also have chosen not to renew the fixed-term employment contract – which would only last two months. The court therefore summarily annulled the dismissal and ordered the employer to pay the salary until the end date of the employment contract.

In conclusion, an employer must also take into account the personal circumstances of the employee if he or she is considering an immediate dismissal. A less drastic measure – such as an official warning, a settlement agreement, the non-renewal of an agreement, a dissolution procedure, etc. – may be more appropriate in some cases. Of course, even in serious personal circumstances, an immediate dismissal may be justified if the urgent reason is so serious that it carries more weight.

 

For further information, please contact:

Ron Andriessen, Partner

Labré advocaten, Amsterdam

e: ron.andriessen@labre.nl

t: +31 20 3052030

 

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