Instant dismissal

If there is an urgent reason for dismissal, the employer can terminate the employment contract with immediate effect; the so-called instant dismissal. However, the dismissal must be given immediately after awareness of the urgent reason and must also be motivated. The dismissal can be given verbally or in writing. It is advisable to confirm the dismissal and the reasons immediately to the employee in writing.

Urgent reason for dismissal

Summarily dismissing an employee is the termination of the employment contract without regard to a notice period. No permission needs to be requested from the UWV or the subdistrict court for this termination of service. The employment contract ends with immediate effect. Instant dismissal is the most far-reaching measure and therefore requires an urgent reason or valid reason. An urgent reason requires behaviour by the employee that is such that the employer cannot reasonably be required to continue the employment contract.

The consequences of immediate dismissal are great for the employee. Therefore, dismissal law prescribes that a summary dismissal must meet strict conditions:

• There must be an urgent reason or valid reason
• Instant dismissal must be given without delay
• The urgent reason must be communicated to the employee without delay

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

• Serious failure or default
• Inadequate performance or dysfunction
• Theft or fraud
• Work refusal without good reason
• Misconduct at work
• Cheating
• Suspension of employee

As soon as the urgent reason becomes known to the employer, the dismissal must be given without delay, i.e. immediately. This should not take a week. Nevertheless, the employer often wants to investigate first to verify the facts and to hear both sides of the argument. Instant dismissal is such a far-reaching measure that it must be done very carefully. An employer who intends to summarily dismiss an employee would do well to initially suspend the employee. At this time, the employer should proceed very expeditiously.

Besides additional investigation into an urgent reason, this also gives the employer the opportunity to seek legal advice on the feasibility of the summary dismissal. However, a deadline is attached to the suspension. This term is often included in the employment contract or is part of the collective labour agreement. The suspension may not last longer than strictly necessary for the investigation.

Wage payment stopped immediately

When there is a valid reason for summarily dismissing an employee, the employer’s wage obligation ceases. Wages no longer have to be paid. For employees, if there is a valid reason for the summary dismissal, the right to receive unemployment benefits is lost. Is the termination of the contract the result of seriously culpable actions or negligence by the employee? If so, the employer does not have to pay statutory transitional compensation.

Compensation employer

Is the instant dismissal the result of deliberate intent or (gross) negligence of the employee? And can the employer prove that he has suffered damage due to the summary dismissal, for example because he has to hire a temporary worker, then the employer can claim liquidated damages 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 open-ended contract that can be terminated early, the compensation is equal to the salary for the duration of the applicable notice period. In the case of a temporary contract without interim termination option, the compensation payable by the employee is equal to the full term of the contract until the end date of the contract.

Case law on summary dismissal

The subdistrict court does not readily assume that there is an urgent reason or valid reason. Nor should an employer take this lightly when considering summary dismissal. Indeed, the employee himself can go to the subdistrict court and ask the court to annul the dismissal. If the subdistrict court later rules – upon an objection by the employee – that there is no urgent reason for dismissal, the dismissal is null and void and the employee is entitled to continued payment of wages, possibly plus statutory increase and statutory interest. For this reason, it is advisable to submit a conditional request for dissolution to the subdistrict court in addition to the instant dismissal.

Submitting a request for dissolution to the subdistrict court

By submitting a (conditional) request for dissolution to the subdistrict court, the subdistrict court is asked to dissolve 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. Should the subdistrict court rule that the immediate dismissal of the employee is not legally valid, the employer can use the dissolution request to ask the court to dissolve the employment contract after all.

Work and Certainty Act

Under the Work and Security Act, a number of changes have been made regarding summary dismissal of employees. A summary dismissal can no longer be set aside through an extrajudicial declaration, but must be set aside through the subdistrict court. Also, the possibility of claiming actual damages will disappear.

Contesting dismissal

An employee who is summarily dismissed can challenge the dismissal. By contesting the summary dismissal, an employee can try not to lose the right to an unemployment benefit and transition compensation. To do so, the employee has two choices: to have the summary dismissal reversed (annulled) or to claim liquidated damages, fair compensation and the transition compensation.

The request to annul the dismissal must be submitted to the subdistrict court within two months of the dismissal by the employee. Does the court overturn the dismissal? Then the employee remains employed. The employer can appeal this ruling. An employee who has been summarily dismissed and who does not challenge the dismissal, but who does want to claim compensation, such as transitional compensation or fair compensation, should also submit a petition to the subdistrict court within eight weeks after the summarily dismissal. Otherwise, the employee will lose the right to these compensations.

Instant dismissal

An employee can also resign on the spot. In practice, however, this does not happen very often. Resigning with immediate effect means that the employment contract is terminated by the employee with immediate effect, without a notice period. Standing dismissal is only allowed when there is a serious situation (urgent reason or valid reason). Examples of such situations are insult, threat or intimidation by the employer or if an employer does not pay the employee’s salary (any longer).

An employee takes a risk with summary dismissal and has to enter into discussions with the UWV about possible unemployment benefits – or even loses the right to unemployment benefits. Often, in any of the above situations, an employee chooses to call in sick. If an employee does choose to terminate the employment contract himself, the employee may be entitled to compensation if the dismissal is due to valid reason or urgent cause. Often, the employer disputes the employee’s choice, so this type of dismissal case can lead to court proceedings.

Blameworthy unemployment and unemployment benefit

As described above, when applying for WW benefit, the UWV tests whether someone is culpably unemployed. If it turns out that someone has been summarily dismissed through his or her own fault and has become unemployed as a result, this person will lose the right to WW benefit or municipal assistance. According to the UWV, a person is culpably unemployed as a result of:

• Instant dismissal due to serious misconduct;
• No timely objection to the dismissal was submitted;
• The employee has resigned on his or her own without a valid reason;
• The employee has signed a termination agreement;
• Dismissal by mutual agreement.

A summary dismissal can often have far-reaching consequences. It is not unusual for this type of dismissal case to end in legal proceedings. To avoid going to the subdistrict court, employer and employee can opt to convert the decision to dismiss the employee on summary dismissal into a mutual agreement dismissal. This outcome offers both parties short-term certainty and precludes further proceedings. The employee may retain entitlement to unemployment benefits.

Call in an expert in dismissal law

A specialist in employment and dismissal law can assist you at every stage of summary dismissal; before dismissal, immediately after dismissal or before 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 lawyer can help you reduce the aftermath and end the employment contract quickly and correctly. For more information or no-obligation advice, contact our specialists.