Grounds for dismissal

Grounds for dismissal

13 januari 2021

Dutch law recognizes a limitative amount of grounds for dismissal. The most common dismissal grounds will be discussed below.

Redundancy

It is possible to receive authorization for dismissal by UWV, in case of redundancy. This can occur due to budget cuts, internal re-organizations, closing of a store, etc. If you decide to end a contract for these reasons, you may receive authorization for dismissal by UWV if you can prove the dismissal is a necessary step for your company. For instance, in case of a dismissal because of budget cuts you will have to provide UWV with your financial documents. Based on the information you provide, UWV will assess whether the proposed dismissal is valid. Thus, it is very important to provide the necessary documents accompanied by a clear explanation on how you have reached this decision.

If there is an inevitable loss of jobs in the company due to budget cuts, you are not allowed to choose which contracts you terminate. There’s an obliged order for dismissal you will have to follow, which is based on[TdC1]  the age of the employees and their years of experience in the company. In case of redundancy within a company with multiple stores and departments, it is sometimes difficult to determine which part of the staff will have to be dismissed. UWV has her own rules on which part of the company staff you should take into account. For instance, it is very well possible when you’re closing one location, you are not allowed to terminate the contracts of all the staff working there. You might have to relocate them to other stores and if necessary even terminate employments of part of the staff at that other store.

To make sure you are taking the right steps we advise you to contact us. Our legal counsels can help you determine for which employee(s) you are able to receive authorization for dismissal. Also, they can assist you by filing, on your behalf, for the necessary permit at UWV.

Long-term illness or disability

Under Dutch law employers are obliged to continue the contract of a long-term ill employee for at least two years. After two years it becomes possible to terminate the contract if the employee has not (fully) returned to his normal tasks.

 In order to receive the authorization for dismissal, UWV will check if you meet all the requirements:

  • According to a company doctor the employee still is not capable of performing his normal tasks;
  • The illness or disability has lasted for 104 weeks;
  • The employee is not expected to recover within 6 months;
  • There is no alternative job function within the company the employee can be replaced to;
  • The employer has made sufficient efforts to reintegrate the employee.

If UWV decides your actions towards reintegration of the employee are insufficient, it can deny your company the permit for dismissal. You will have to continue the contract with the employee for up to another year. During this time, you are obliged to pay 70% of the regular salary of the employee. Thus, it is very important you keep a well-documented file on the reintegration during the 104 weeks of illness. Don’t hesitate to contact us with any question you have on this matter. If necessary, our legal counsels can assist in disputes with the employee regarding reintegration. Also, they can help you file for the necessary permit.

Inadequate performance

If your employee does not perform it’s tasks well enough, this could form a ground for dismissal. Before you will be able to terminate an employment, you will have to ensure that you have done everything in your power to enhance the performance of your employee.

Thus, you will have to provide them with an individual improvement plan. Also you will have to offer all the necessary training for the employee in order to improve his or her skills. If this assistance hasn’t worked and the performance is still inadequate, you can start a procedure to terminate the contract. For advice on the individual improvement plan or an assessment of your specific situation, please don’t hesitate to contact INretail.

Disturbed employment relationship

When working together, it sometimes occurs we have our differences with one another. Sometimes, this may lead to a dispute that can’t be solved. If this occurs between you as an employer and one of your employees, you could eventually decide to terminate the contract due to a disturbed working relationship. However, a dismissal for these reasons does demand you have done everything in your power to overcome the dispute. At least a mediation procedure must have been followed.

If this didn’t have any effect, a dismissal is still not possible if there are alternative job options within your company, in which the conflict will not play any role. However, if such a position is not available, dismissal might be allowed.

As employer you will have to prove the existence of the conflict and the imposed measures to overcome it. It is thus very important to keep a file of all things related to the conflict. Keep in mind that you will probably have to pay a remuneration to the employee. Most often the employment is ended after negotiating a settlement agreement. At INretail we can assist you in these negotiations and advise you on the necessary steps for dismissal.

Other grounds

There are other possible grounds due to which it can’t be demanded of the employer to continue the employment. For instance, in case of detention of the employee or when the employee does not possess the necessary work permit. If you hesitate whether you have a ground for dismissal, please contact INretail to discuss your situation and the best possible action.

Thijmen de Coo

Thijmen de Coo

Adviseur Ondernemersservice

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