Dismissal via subdistrict court

The relationship between an employer and employee can be disrupted in various ways. In the event of poor performance, a disrupted working relationship or culpable conduct on the part of an employee, an employer can dismiss an employee by submitting a request for termination of the employment contract to the subdistrict court. The employer can only apply for dismissal through the subdistrict court if the dismissal is related to personal reasons, poor performance or a labour dispute.

Dismissing an employee through the subdistrict court

An employer can submit a request to the subdistrict court to terminate the employment contract in the event of (personal) situations relating to the employee. Dismissal through the subdistrict court is possible in the following cases:

1. Inadequate performance or inadequate execution of work (dysfunction)

2. Serious culpable acts or culpable behaviour

3. A disrupted working relationship

4. Regular or frequent absenteeism due to illness with serious consequences for the organisation

5. A combination of the above or related causes (cumulative grounds)

Dismissal due to long-term incapacity for work

In the case of summary dismissal for urgent reasons, the permission of the subdistrict court is not required to terminate the employment contract. However, an employee who does not agree with the summary dismissal can challenge the dismissal before the subdistrict court. Dismissal proceedings through the subdistrict court are only possible in the event of dismissal for reasons other than commercial reasons or due to long-term incapacity for work. In the case of commercial reasons for dismissal or dismissal due to long-term incapacity for work, the dismissal route is via the UWV. Dismissal also goes through the subdistrict court if the employee has a temporary employment contract that cannot be terminated prematurely.

How does the dismissal procedure work at the subdistrict court?

The dismissal procedure via the subdistrict court or applying for dismissal via the subdistrict court consists of several steps. Termination of a contract at the subdistrict court starts with the submission of a petition to terminate the employment contract. In the petition, the employer describes the reason(s) for the proposed dismissal and must explain why the employee cannot be redeployed. The second phase of the dismissal procedure, also known as the termination procedure, is the oral phase.

Dismissal via the subdistrict court must be substantiated by adding supporting documents that back up the employer’s case, such as the employment contract, salary specifications and assessments. A witness statement can also be added to the petition regarding the disrupted working relationship that substantiates the request for dismissal. The subdistrict court assesses whether the employer has provided a valid reason for dismissal and sufficient evidence.

How long does dismissal via the subdistrict court take?

The duration of dismissal proceedings before the subdistrict court depends on various factors. The subdistrict court usually decides on a request for termination four weeks after the hearing. However, this period may vary. In some cases, depending on the specific circumstances of the case, the decision may not be made until several months (or longer) later. For example, a possible hearing at which both parties explain their positions may prolong the proceedings. The employee may also challenge the dismissal before the subdistrict court, which may prolong the duration of dismissal proceedings before the subdistrict court.

Request for termination of employment contract

Until 1 January 2020, every reason given for dismissal had to be fully substantiated. The subdistrict court only proceeded with the termination of the employment contract if at least one of the grounds for dismissal was fully met. Nowadays, in the event of dismissal via the subdistrict court, the court may also agree to termination on the basis of cumulative grounds – dismissal on the basis of various reasons or causes that together provide sufficient grounds for termination of the contract.

Dismissal by the subdistrict court: employee’s statement of defence

An employee who disagrees with the request for termination can submit a statement of defence against the dismissal application. After the written defence has been submitted, an oral hearing of the case takes place, during which the employee is given the opportunity to respond to the employer’s request for dismissal. In the event of dismissal via the subdistrict court, the court will first examine which solution is most appropriate for the specific case. This may be a settlement, reaching agreement through mediation or a court ruling. Once both parties have reached agreement on the dismissal arrangements, the subdistrict court will record these arrangements in a binding report.

Employee transition payment

When the subdistrict court terminates the employment contract, the employer generally has to pay a transition payment to the employee. Has the employee shown seriously culpable behaviour? In that case, the subdistrict court may decide that the employer has to pay a lower or no transition payment. In the case of culpable unemployment, the employer may also lose the right to unemployment benefits. If the subdistrict court rules that the dismissal is based on cumulative grounds, the court may award the employee additional compensation (up to half of the transition payment) in addition to the transition payment.

The statutory transition payment is the successor to the subdistrict court formula for dismissal. From 2015 onwards, this formula will no longer be used by subdistrict courts in cases of dismissal by mutual consent and collective dismissal. The transition payment is calculated over six-month periods of the employment contract. As a general rule, the monthly salary per year of service applies. Furthermore, the transition allowance is capped.

In exceptional cases – in the event of serious culpable acts or omissions on the part of the employer – the subdistrict court may decide to award fair compensation in addition to the transition allowance. The transition allowance and fair compensation are not dependent on each other and are therefore completely separate. A claim for fair compensation must be submitted to the subdistrict court within two months of the end of the employment contract.

What is fair compensation?

Fair compensation is an additional severance payment that the court may award to an employee if the dismissal is the result of serious culpable acts or omissions on the part of the employer. This compensation is in addition to the transition payment and is intended as compensation for the injustice done to the employee. It is therefore crucial for employers to act carefully and seek legal advice when making far-reaching decisions, in order to avoid financial risks and damage to their reputation.

The subdistrict court and unemployment benefits

Dismissal through the subdistrict court may have consequences for the employee’s unemployment benefits. In principle, employees retain their right to unemployment benefits, provided they meet the applicable requirements. After dismissal proceedings before the subdistrict court, the UWV determines whether the employee is eligible for benefits. If an employee disagrees with the court’s ruling, they can challenge the dismissal before the subdistrict court.

Appeal and cassation

An employer who disagrees with the court’s decision can appeal against the dismissal ruling via the subdistrict court. If an employer lodges an appeal, the dismissal case will be re-examined. The appeal must be lodged by a solicitor and submitted to the court of appeal within three months of the ruling. If an employer subsequently disagrees with the court of appeal’s ruling, the employer can appeal to the Supreme Court. The appeal must be lodged with the Supreme Court of the Netherlands. A solicitor must submit this request.

Court fees and duration of termination proceedings

Legal proceedings for the termination of an employment contract through the subdistrict court involve costs, known as court fees. If the employer submits the petition, the costs of handling the case are borne by the employer. According to the law, termination proceedings for dismissal through the subdistrict court must take place within five weeks of the submission of a petition.

Ruling on dismissal due to a disrupted working relationship

The court usually rules on a request for termination of an employment contract within four weeks. Both parties often receive a written decision from the subdistrict court within two weeks of the hearing. The judge determines the date on which the employment contract ends. This takes into account the notice period and the expired termination procedure. The notice period is at least one month.

What does dismissal through the subdistrict court cost?

The costs of dismissal through the subdistrict court depend on various factors, such as legal assistance and any severance pay. As a result, these costs can vary considerably. In addition to the costs of legal assistance, in some cases one party may be obliged to pay the other party’s legal costs. As part of the termination proceedings, the subdistrict court may award severance pay to the employee. In addition, the party submitting the request for termination must pay court fees to the court.

Termination and prohibition of termination

Termination during the probationary period can take place without dismissal via the subdistrict court or intervention by the UWV. The employer does not need to provide any further justification for this. When terminating an employment contract, the employer must take into account a number of prohibitions on termination. These prohibitions prohibit the employer from terminating the employment contract in certain situations and/or during certain periods. These include:

1. Termination during illness;

2. Termination during pregnancy;

3. Termination of the employment contract of a member of the Works Council.

It should be noted that each specific situation may lead to an exception to the main rule. A solicitor or lawyer can assess whether this is the case.

Serious culpability on the part of the employer

Just as an employer can dismiss an employee for serious culpable conduct, an employee can also decide to take the matter to the subdistrict court in the event of serious culpability or negligence on the part of the employer. In the event of dismissal through the subdistrict court, the employee can indicate to the court that they are entitled to additional severance pay as compensation. If the subdistrict court rules that the termination of the employment contract is the result of serious negligence on the part of the employer, the employer must pay this additional compensation in addition to the transition payment to which the employee is entitled. The subdistrict court determines the amount of the severance pay.

Frequently asked questions about: dismissal via the subdistrict court

How does the subdistrict court judge assess the application for termination?

The subdistrict court judge assesses an application for termination on the basis of the statutory grounds for dismissal (Section 7:669 of the Dutch Civil Code) and checks whether there are reasonable grounds for terminating the employment contract. These could include poor performance or a disrupted working relationship. The court also considers whether redeployment within a reasonable period of time is possible and whether the employer has done enough to resolve the problem. A well-substantiated file is therefore crucial.

What should you, as an employer, pay close attention to when drawing up a reintegration plan?

As an employer, when drawing up a reintegration plan, you must pay close attention to the legal obligations and the practical feasibility of the plan. The programme must be in line with the employee’s capacity for work as determined by the company doctor and focus on a return to work — in their own job or in other suitable work. Ensure that all steps, such as the problem analysis, the action plan and the progress meetings, are recorded correctly and in a timely manner. Don’t forget to actively consider options within or outside the organisation. A careful and realistic programme prevents delays and wage sanctions and increases the chance of a sustainable return to work.

What are the consequences for the employee if the dismissal request is rejected by the subdistrict court?

If the subdistrict court rejects the employer’s dismissal request, the employment contract remains in force and the employee retains his or her job and associated rights, such as wage payment and accrued seniority. The employer cannot then proceed with dismissal unilaterally and will either have to appeal or submit another (newly substantiated) ground for dismissal in a new request. For the employee, a rejection by the court therefore strengthens their legal position, but it can also lead to a tense working relationship. In practice, it is therefore important that, after a request has been rejected, both parties carefully consider whether and how they wish to continue the employment relationship or whether they still wish to reach an amicable settlement.

Seek advice or assistance from a specialist

Dismissing an employee is a drastic and far-reaching measure. Because dismissal via the subdistrict court involves many complexities, it is important that you seek sound advice or assistance from a solicitor or legal specialist. The solicitors at Fruytier Lawyers in Business have extensive experience in employment law and dismissal law and can assist you in managing the dismissal procedure and terminating an employment contract. For more information about dismissal in the event of a disrupted employment relationship or one of the other reasons, please feel free to contact one of our solicitors.

Authors: Employment law solicitors Judy Sliepen and Myrddin van Westendorp