Instant dismissal

If there is an urgent reason for dismissal, the employer may terminate the employment contract with immediate effect; this is known as summary dismissal. However, the dismissal must be given immediately after the urgent reason becomes known and must also be justified. The dismissal can be given either verbally or in writing. It is advisable to confirm the dismissal and the reasons for it to the employee in writing immediately.

Urgent reason for dismissal

Dismissing an employee with immediate effect means terminating the employment contract without taking a notice period into account. No permission needs to be sought from the UWV or the subdistrict court for this termination of employment. The employment contract ends with immediate effect. Summary dismissal is the most extreme measure and therefore requires urgent or valid reasons. Urgent reasons must involve conduct on the part of the employee that is such that the employer cannot reasonably be expected to continue the employment contract.

The consequences of immediate dismissal are significant for the employee. That is why dismissal law stipulates that summary dismissal must meet strict conditions:

There must be an urgent or valid reason
Summary dismissal must be given immediately
The urgent reason must be communicated to the employee immediately

Examples of urgent reasons for immediate termination of the employment contract, whether it is a permanent or temporary contract, include:

Serious shortcomings or breach of contract
Inadequate performance or dysfunction
Theft or fraud
Refusal to work without good reason
Misconduct at work
Deception

Suspension of the employee

As soon as the urgent reason has become known to the employer, the dismissal must be given without delay, i.e. immediately. There should be no delay of a week. However, the employer often wants to investigate first in order to verify the facts and to hear both sides of the story. Summary dismissal is such a drastic measure that it must be carried out with great care. An employer who intends to summarily dismiss an employee would be wise to first suspend the employee. At this point, the employer must act very decisively.

In addition to further investigation into an urgent reason, this also gives the employer the opportunity to seek legal advice on the feasibility of summary dismissal. There is a time limit on suspension. This time limit is often included in the employment contract or is part of the collective labour agreement. The suspension may not last longer than is strictly necessary for the investigation.

What should you do as an employer when you suspend an employee?

In the event of a suspension, the employer must notify the employee of this decision in writing, stating the reasons, the expected duration and the obligation to be available for the investigation.

Immediate cessation of wage payments

If there is a valid reason for summarily dismissing an employee, the employer’s obligation to pay wages ceases. Wages no longer need to be paid. For employees, if there is a valid reason for summary dismissal, the right to receive unemployment benefits lapses. Is the termination of the contract the result of serious culpable conduct or negligence on the part of the employee? Then the employer does not have to pay the statutory transition allowance.

Employer compensation

Is the summary dismissal the result of intent or (gross) negligence on the part of the employee? And can the employer demonstrate that they have suffered damage as a result of the summary dismissal, for example because they have to hire a temporary worker, then the employer can claim fixed compensation from the employee. In this situation, the employee owes compensation to the employer.

The amount of this compensation depends on the type of employment contract. In the case of a fixed-term or permanent contract that can be terminated prematurely, the compensation is equal to the salary for the duration of the applicable notice period. In the case of a temporary contract without the possibility of early termination, the compensation that the employee must pay is equal to the full duration of the contract until the end date of the agreement.

Case law on summary dismissal

The subdistrict court judge does not readily accept that there is an urgent or valid reason. An employer should not take summary dismissal lightly either. The employee can also go to the subdistrict court judge and ask the court to reverse the dismissal. If the subdistrict court later rules – in the event of an objection by the employee – that there are no urgent reasons for dismissal, the dismissal is null and void and the employee is entitled to continued payment of wages, possibly increased by the statutory increase and statutory interest. For this reason, it is advisable to submit a conditional request for termination to the subdistrict court in addition to the summary dismissal.

Submitting a request for termination to the subdistrict court

By submitting a (conditional) request for termination to the subdistrict court, the subdistrict court is asked to terminate the employment contract in the event that the summary dismissal proves to be unjustified. The background to this request is based on a breach of trust. The relationship between the employee and employer has been irreparably damaged as a result of the dismissal. If the subdistrict court rules that the summary dismissal of the employee is not legally valid, the employer can still request the court to terminate the employment contract by means of the request for termination.

Work and Security Act

Under the Work and Security Act, a number of changes have been made with regard to the summary dismissal of employees. Summary dismissal can no longer be annulled by means of an extrajudicial declaration, but must be annulled by the subdistrict court. The possibility of claiming actual damages also disappears.

What are the consequences of summary dismissal for the employee?

The consequences for the employee are far-reaching in the event of summary dismissal. He or she loses his or her job immediately, is in principle not entitled to a transition payment and is usually not eligible for unemployment benefits. Because the bar for a legally valid summary dismissal is high, it is very important for employers to carefully document the situation and seek legal advice before proceeding with dismissal.

Challenging dismissal

An employee who has been summarily dismissed can challenge the dismissal. By challenging the summary dismissal, an employee can try to retain their entitlement to unemployment benefits and a transition allowance. To do so, the employee has two options: to have the summary dismissal revoked (annulled) or to claim fixed compensation, fair compensation and the transition allowance.

The request to annul the dismissal must be submitted by the employee to the subdistrict court within two months of the dismissal. If the court annuls the dismissal, the employee remains in service. The employer can appeal against this ruling. An employee who has been summarily dismissed and does not contest the dismissal but wishes to claim compensation, such as a transition payment or fair compensation, must also submit a petition to the subdistrict court within eight weeks of the summary dismissal. If this is not done, the employee loses the right to these payments.

Resigning with immediate effect

An employee can also resign with immediate effect. In practice, however, this does not happen often. Resigning with immediate effect means that the employment contract is terminated with immediate effect by the employee, without a notice period. Resigning with immediate effect is only permitted in serious situations (urgent reason or valid reason). Examples of such situations include insults, threats or intimidation by the employer, or if an employer does not (or no longer) pays the employee’s salary.

An employee who resigns with immediate effect is taking a risk and must discuss possible unemployment benefits with the UWV (Employee Insurance Agency) – or may even lose their right to unemployment benefits. In one of the above situations, employees often choose to report sick. If an employee does choose to terminate the employment contract themselves, they may be entitled to compensation if the dismissal is the result of a valid reason or urgent reason. Employers often contest the employee’s choice, which means that these types of dismissal cases can lead to legal proceedings.

Culpable unemployment and unemployment benefits

As described above, when someone applies for unemployment benefits, the UWV assesses whether they are culpably unemployed. If it appears that someone has been summarily dismissed through their own fault and has become unemployed as a result, that person loses their right to unemployment benefits or social assistance from the municipality. According to the UWV, someone is culpably unemployed as a result of:

Summary dismissal due to serious misconduct
No objection to the dismissal was lodged in time
The employee resigned without valid reason
The employee signed a termination agreement

Resignation by mutual consent

Summary dismissal can often have far-reaching consequences. It is not uncommon for this type of dismissal case to end up in court. To avoid going to the subdistrict court, the employer and employee can choose to convert the decision to dismiss the employee with immediate effect into dismissal by mutual consent. This outcome offers both parties short-term certainty and rules out further proceedings. The employee may retain the right to unemployment benefits.

Call in an expert in dismissal law

A specialist in employment law and dismissal law can assist you at every stage of a summary dismissal: before the dismissal, immediately after the dismissal or during the proceedings. The employment lawyers at Fruytier Lawyers in Business have extensive experience in dismissal law and can provide you with targeted advice. Through strong legal advice and action, a solicitor can help you minimise the aftermath and terminate the employment contract quickly and correctly. For more information or no-obligation advice, please contact our specialists.

Authors: Employment law solicitors Judy Sliepen and Myrddin van Westendorp