Instant dismissal reversed
Instant dismissal has far-reaching consequences for the employee. With this his employment contract is being terminated...
Instant dismissal has far-reaching consequences for the employee. With this his employment contract is being terminated immediately. Not only is the employee deprived of his salary, but in principle he also can’t claim an unemployment benefit (because he is culpable unemployed). The employee can at most fall back on a social assistance benefit, when he qualifies for that.
Because of these far-reaching consequences of an instant dismissal, there is being said that an instant dismissal is the most far-reaching (the ultimate) sanction, which an employer has. Because of that reason can an employer only use this is in very special situations.
Although judges judge an instant dismissal critically, there still are employers who give instant dismissals, in hope of forcing the termination of an employment contract. A client of mine experienced this not so long ago. Luckily for my client both the sub district court as the justices of the Supreme Court saw through it.
Some time ago the client in question contacted me. Reason for this was that his employer terminated his employment contract. Although the employer during the conversation, in which the dismissal was communicated, referred tot heir financial situation, the employer stated in the dismissal letter about a mutual decision.
During this conversation I concluded immediately that this was an atypical matter; not only was the client of a foreign nationality, his superiors weren’t from the Netherlands as well. As a matter of fact, none of those involved lived in the Netherlands and nobody spoke Dutch (all communication was done in English). Besides it also played a part that the client had had a high function and received an adequate salary.
When it became clear for the employer that the termination wouldn’t stand, she reinstated client. Corresponding to her “approval” the client’s employer started, old-fashionably, “getting rid off” her. Client was demanded – where he first stayed abroad a lot – to stay at the office in Eindhoven 4 days a week. That instruction was motivated with the statement that this presence in Eindhoven was necessary for the improvement plan the employer wanted.
Client challenged that he wouldn’t have functioned. He referred among other things to a more than substantial pay raise, which was given to him in a relatively short employment of 9 months, as well a the fact that there had never been spoken about this. After consultation with me he did obey the instruction to come to Eindhoven, although this was really hard for him.
After arriving in Eindhoven client noted that he didn’t had t come to Eindhoven for implementing an improvement plan, but that the improvement plan was being played as an excuse in order to make him go to Eindhoven. Although client came to Eindhoven multiple times a week from his home address in France, the employer didn’t start an improvement plan at all. As a matter of fact there were no talks about the functioning of the client at all. The only contacts there were between client and his superior were there to say if client had been at the office for all the hours. What he did during these hours didn’t interest the employer apparently, because she took all of his activities and didn’t provide him with new ones.
When the employer - despite repeated requests of my client – stayed reluctant to set up an improvement plan and didn’t supply him with new activities, client couldn’t take it any more to travel all the way to the Netherlands. Under these circumstances it wasn’t in his eyes a reasonable instruction of his employer that he needed to travel to Eindhoven.
This was the moment the employer had been waiting for, and she saw her chance to get her desired termination of the employment contract; she dismissed my client with immediate effect.
Whereas client couldn’t comply even a bit with this instant dismissal, client applied to the judiciary successfully, with the request of continued payment of the salary of client.
Both the sub district court (at first instance) as the Supreme Court (in the appeal by the employer) stated the client upheld and judged that the instant dismissal wasn’t justified. For that reason both the sub district court as the Supreme Court ruled that client was entitled, without prejudicing, to his salary till the ending date of his employment contract, increased with the legal rise of article 7:625 BW, the lawful interest and compensation for the procedural expenses made by client.
Although both the sub district court as well as the Supreme Court couldn’t say it with that many words, can be concluded in my opinion out of their rulings that they understood that the employer had instigated this situation on purpose in an attempt to come to her much wanted termination of the employment contract, something both the sub district court as the Supreme Court did not let the employer get away with.
The ruling of the Supreme Court has been published here.