Dismissal via subdistrict court
The relationship between an employer and employee can become disrupted in various ways. In case of dysfunction, a disturbed working relationship or culpable actions of an employee, an employer can dismiss an employee by submitting a request for dissolution of the employment contract to the subdistrict court. The employer can only request dismissal through the subdistrict court when the dismissal is related to personal reasons, poor performance or an employment conflict.
Dismissing an employee through the subdistrict court
An employer can submit a request for dissolution of the employment contract to the subdistrict court in case of (personal) situations concerning the employee. Dismissal via the subdistrict court is at issue in the event of:
- Inadequate performance or insufficient performance of work (dysfunction);
- Serious culpable actions or conduct;
- A disrupted working relationship;
- Regular or frequent absenteeism due to illness with serious consequences for the organisation;
- A combination of the above or related causes (cumulative ground).
Dismissal in case of long-term disability
In the event of instant dismissal for urgent reasons, permission from the subdistrict court is not necessary to dissolve the employment contract. However, an employee who does not agree with the summary dismissal can challenge the dismissal before the subdistrict court. A dismissal procedure through the subdistrict court is only possible in case of dismissal for reasons other than business economic reasons or due to long-term disability. In the case of business economic reasons for dismissal or dismissal due to long-term disability, the dismissal route is via the UWV.
Subdistrict court dismissal procedure
The dismissal procedure through the subdistrict court consists of several steps. Dissolution of a contract with the subdistrict court starts with the submission of a petition to dissolve the employment contract. In the petition, the employer describes the reason(s) for the intended dismissal and should explain why the employee cannot be reinstated. The dismissal through the subdistrict court must be substantiated by attaching documentary evidence that supports the employer’s case, such as the employment contract, salary statements and appraisals. A witness statement can also be added to the petition regarding the disrupted working relationship. The subdistrict court tests whether the employer provides a valid reason for dismissal and solid substantiation.
Until 1 January 2020, any reason given for dismissal had to be fully substantiated. The subdistrict court would only dissolve the employment contract if at least one of the grounds for dismissal was fully met. Nowadays, in cases of dismissal through subdistrict court, the court can also agree to dissolution based on cumulation grounds – a dismissal based on several reasons or causes that together provide sufficient grounds for contract dissolution.
Subdistrict court dismissal: employee’s defence
An employee who does not agree with the request for dissolution can submit a statement of defence against the request for dismissal. This is respond to the employer’s request for dismissal through the oral defence. When dismissing through the subdistrict court, the court initially examines which solution is most appropriate for the specific case. This could be a settlement, finding agreement through mediation or a court ruling. The moment both parties reach agreement on the dismissal arrangements, the subdistrict court records these arrangements in a binding report.
Employee transition allowance
When the subdistrict court dissolves the employment contract, the employer generally has to pay a transfer fee to the employee. Is there serious culpable behaviour by the employee? Then the subdistrict court may decide that the employer has to pay a lower or no transition compensation. Moreover, in the case of culpable unemployment, the employer may lose the right to an unemployment benefit. If the opinion of dismissal through the subdistrict court is that the dismissal is based on cumulative grounds, the court may award an additional compensation (up to half of the transition allowance) to the employee in addition to the transition allowance.
The transition compensation is the successor to the subdistrict court formula for dismissal. From 2015, this formula will no longer be used by subdistrict courts in cases of dismissal by mutual consent and collective dismissal. The transition compensation is calculated over six-month periods of the employment contract. The main rule is one month’s salary per year of service. Furthermore, the transition compensation is capped.
In exceptional cases – if the employer’s actions or omissions are seriously culpable – a fair compensation may be awarded in addition to the transitional compensation. Transition compensation and equitable compensation are not dependent on each other and are therefore completely separate. A claim for fair compensation must be filed with the subdistrict court within two months of the end of the employment contract.
On appeal and in cassation
An employer who disagrees with the court’s order may appeal against the dismissal ruling through the subdistrict court. In this case, the dismissal case is heard again. The appeal must be filed by a lawyer and submitted to the court within three months of the ruling. If an employer subsequently disagrees with the court’s judgment, the employer can appeal in cassation. The cassation appeal must be filed with the Supreme Court of the Netherlands. A lawyer must submit this request.
Court fees and duration of dissolution proceedings
Legal proceedings for dissolution of an employment contract through the subdistrict court are subject to costs, known as court fees. If the employer submits the petition, the costs of handling the case are borne by the employer. By law, a dissolution procedure for dismissal through the subdistrict court must take place within five weeks of filing a petition.
Judgment on dismissal due to a disrupted working relationship
The court usually rules on a request for dissolution 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 dissolution procedure. The notice period is at least one month.
Notice and termination prohibitions
Termination during the probationary period can take place without a dismissal through the subdistrict court or intervention of the UWV. The employer does not have to motivate this further either. When terminating an employment contract, the employer must take into account a number of termination prohibitions. These notice prohibitions prohibit the employer from terminating the employment contract in a certain situation and/or during a certain period of time. These include:
- Termination during illness;
- Termination during pregnancy;
- Termination of the employment contract of a member of the Works Council.
Each specific situation may lead to an exception to the main rule. A lawyer or legal expert can assess whether this is the case.
Serious culpability of the employer
Just as an employer can dismiss an employee for serious culpability, an employee can also go to the subdistrict court himself in case of serious culpability or negligence on the part of the employer. When dismissed through the subdistrict court, the employee can indicate to the court that he or she is entitled to additional severance pay as compensation. If the subdistrict court judges 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 compensation to which the employee is entitled. The subdistrict court determines the amount of the severance payment.
Get advice or assistance from a specialist
Dismissing an employee is a drastic and far-reaching measure. Because a dismissal through the subdistrict court has many implications, it is important that you seek proper advice or assistance from a lawyer or legal specialist. The lawyers at Fruytier Lawyers in Business have extensive experience in employment and dismissal law and will support you in managing a dismissal procedure and terminating an employment contract. For more information about a dismissal in the event of a disrupted working relationship or any of the other reasons, please feel free to contact one of our lawyers.« Back to employment law