Dismissal where multiple grounds for dismissal apply
In the Netherlands, dismissal is never a mere formality. The law provides extensive protection for employees, and as an employer, you cannot simply terminate an employment contract, even if you believe there are good reasons for doing so. You need a legal ground for dismissal and you must be able to substantiate this properly with facts.
However, it is by no means black and white, and a combination of circumstances is often the case. In this article, I explain how it works when there is a combination of multiple grounds for dismissal which, on their own, are not sufficient to justify the termination of the employment contract.
Legal basis
Dutch dismissal law operates under a closed system of grounds for dismissal. Nevertheless, the law offers employers an additional option through the so-called ‘cumulative ground’ (Section 7:669(3)(i) of the Dutch Civil Code). On the basis of this ground, you can combine two or more insufficient grounds for dismissal into a single sufficient and reasonable ground for dismissal. However, this is not possible for grounds relating to long-term incapacity for work, business economic reasons and conscientious objections.
The most common grounds for dismissal are: poor performance (d), culpable conduct (e) and a disrupted working relationship (g). For a successful invocation of the cumulative ground, the key question is: can you, as an employer, reasonably not be expected to continue the employment contract? That bar is set high. Two grounds that are each only partially met are insufficient, but it is also not required that one of the underlying grounds be almost fully satisfied. The assessment revolves around the overall picture of circumstances.
Explain the connection
Judges expect you to actively explain why the combination of circumstances, taken together, constitutes a fully-fledged reasonable ground. The cumulative ground is not a remedy. Do not use it to salvage a poorly constructed case or to ensure that an incomplete ground for dismissal is still upheld. You must be able to substantiate why it is precisely this combination of circumstances that necessitates the termination of the employment contract. There is certainly no heightened burden of proof. This means that the employer does not need to provide additional justification or substantiation for their request.
The cumulative compensation
If the court terminates the employment contract on the grounds of cumulative causes, it may award a so-called cumulative compensation in addition to the transition payment. This compensation amounts to a maximum of 50% of the transition payment and serves as compensation for the employee who is dismissed on grounds where none of the underlying reasons was sufficient on its own.
Advice
As always, our advice is to document all agreements and discussions regarding performance. Confirm these by email and include them in the personnel file. Give the employee the opportunity to improve and properly document their progress. If the employee says something different from what they confirm by email, point this out and ask for clarification. This may later provide the necessary substantiation and grounds for a dismissal case.
Questions
Do you have any questions regarding this article? Our lawyers are ready to advise you! Please contact one of our lawyers via email, by telephone or fill in the contact form for a no-obligation initial consultation. We would be happy to discuss this with you.
