Two grounds on which an Employment Contract may be terminated:
- Termination by the employer on 'reasonable grounds' (see below). Depending on the type of ground, termination is only allowed with the prior permission/consent of the subdistrict court or the UWV.
- Termination of the employment contract by mutual consent (settlement agreement).
Reasonable ground
The 'reasonable grounds for dismissal' are included in Section 7:669(3)(a) to (h) of the Dutch Civil Code and are: business economic circumstances, long-term absenteeism due to illness, frequent absenteeism due to illness, dysfunction, culpable acts or omissions, conscientious objection, disrupted employment relationship or other circumstances. Reasonable grounds may also coincide.
- If there are 'reasonable grounds', the employer must first try to redeploy the employee to a suitable position within his organisation within a reasonable period of time, with or without training. Judges are obliged, when assessing a request for dissolution, to examine whether the employer has complied with his obligation to be reassigned.
- The obligation for an employer to either request permission from the UWV to terminate the employment contract or to request the subdistrict court to terminate the employment contract only exists if the employee does not agree in writing to the termination of his employment.
- A request by the employer to dissolve the employment contract must be examined by the court in the light of the criteria laid down by law and subordinate regulations based thereon. If the grounds invoked by the employer do not provide sufficient grounds for dismissal, the court may not dissolve the employment contract.
- In the event of an intended dismissal due to business economic circumstances or long-term absenteeism due to illness, the employer must ask the UWV for permission to terminate the employment contract if the employee does not agree to the termination of his employment.
- If there is a ban on giving notice, an employer may not terminate the employee's employment contract. In principle, the subdistrict court may not terminate the employment contract in that case either.
- In certain cases, the employee may claim transition compensation and/or fair compensation.
Termination by mutual agreement.
In addition to the above-mentioned grounds, it is always possible to terminate the employment contract by mutual consent (settlement agreement). An employer and an employee may decide to terminate the employment contract by mutual consent. They can lay down these arrangements in an agreement: a settlement agreement.
Ground for dismissal Dysfunction
Reasonable cause in the context of dysfunction is understood to mean:
"the unsuitability of the employee to perform the stipulated work, other than as a result of illness or defects of the employee, provided that the employer has notified the employee of this in good time and has given him sufficient opportunity to improve his performance and the unsuitability is not the result of insufficient care on the part of the employer for the training of the employee or for the working conditions of the employee."
Criteria:
- the employer must demonstrate the unsuitability; and
- it must be established that the unsuitability of the worker is not due to illness or disability of the worker; and
- the employer has had sufficient contact with the employee to try to bring about an improvement in the employee's performance; and
- it must be plausible that the dysfunction is not due to insufficient care for working conditions on the part of the employer.
Whether or not the employee is to blame is irrelevant
Whether or not the malfunctioning can be blamed on the employee is in principle irrelevant. Therefore, even if the employee cannot do anything about the fact that he is unsuitable for the position, the employment contract can be terminated, provided that the set requirements have been met. For an application for dissolution on the grounds of dysfunction, use can be made of the Example application for dissolution on the grounds of dysfunction.
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