DISMISSAL

Dismissal occurs when the employment contract is terminated against the other party’s will.

An employee may terminate an employment contract of indefinite duration or a fixed-term employment contract that may be terminated before the end of the term. There are no further conditions attached to this, except that the employee must observe the notice period.

A fixed-term employment contract in which the parties have not agreed that it may be terminated before the end of the term cannot be terminated before the end of the term.

There are additional rules that apply to an employer wishing to dismiss an employee on a permanent contract or a contract that can be terminated at short notice. If the employee does not consent to their dismissal, the employer may apply to the UWV for permission to terminate the employment contract with the employee or apply to the subdistrict court to have the employment contract with the employee dissolved if one of the following grounds for dismissal applies:

1. Loss of jobs (for business reasons);
2. Long-term incapacity for work (>24 months);
3. Frequent absenteeism with unacceptable consequences for the employer;
4. Poor performance;
5. Culpable acts or omissions on the part of an employee;
6. Refusal to work on grounds of conscientious objection and no possibility of accommodation;
7. Distressed working relationship;
8. Circumstances other than those mentioned above, which are such that the employer cannot reasonably be expected to continue the employment contract.
9. A combination of the grounds mentioned above.

For dismissal on grounds of long-term incapacity for work or for business reasons, an application for a dismissal permit must be submitted to the UWV. For all other reasons, the employer must apply to the subdistrict court to have the employment contract terminated. If any of the grounds for dismissal are not met, the UWV will not grant a dismissal permit and the subdistrict court will not proceed with the termination. In that case, the employee remains in service.

In practice, parties often part ways by means of a settlement agreement. Strictly speaking, this does not constitute dismissal, as both parties agree to the termination of the employment contract. However, it is often one of the parties who takes the initiative to terminate the employment contract; in many cases, this is the employer. The employee will only be prepared to agree to the termination of their employment contract under certain conditions.

In a settlement agreement, the parties agree, amongst other things, on when the employment contract will end and whether the employee will receive severance pay. After signing the settlement agreement, the employee has a cooling-off period of fourteen days. During this cooling-off period, the employee may terminate the settlement agreement without giving any reason, in which case the employment contract between the parties will remain in force. Once the cooling-off period has expired, the settlement agreement cannot, in principle, be challenged any further.