Use of correct terminology

The importance of the use of correct terminology

It is still the case that attorneys are mostly called upon, when a conflict already persists for some time. In these cases they are confronted with a particular situation in which they have to come up with a solution. I cannot emphasise more clearly what the importance is for employers to look different at the legal services of attorneys. They must not be blind to the fact that a timely use of legal assistance can save time and money.

Our firm offers in that context a legal scan for you. We can assess the state of you labour law practices and point out on which points adjustments are necessary. In order to prove this point I would like to quote several examples from Dutch case law in which an employer already acted before consulting legal services, which had lengthy, mostly tedious and expensive proceedings as a consequence.

The first example concerns a judgment from the court ‘Midden-Nederland’, issued on the 26th of August 2015 (updates.nl/2015/0837). The case dealt with a sick employee who did not want to cooperate in the correct way with his reintegration. His employer sends him a letter in which he states that he will suspend the continued payment of salary. What the employer actually wanted to communicate was that the salary payments would stop.

This is indeed the penalty for non-cooperation with the re-integration, but the correct terminology in the letter is important. Suspension of the continued payment of salary can only be applied in cases where the disability of the employee cannot be determined. This is therefore a different situation then the employer meant, but because of his use of words the result has been much bigger as we will see. It does not matter what the intentions of the employer were and/or whether the employee understood what was meant by the employer. It is also not relevant that a letter existed in which the consequences of the non-cooperation with the re-integration was discussed, amongst which the suspension of the right to his wage. Although the employee fell short on his duty to cooperate with the reintegration, the employer had to pay the full wage nevertheless, because he used the wrong terminology. When he would have used legal services earlier during this situation, this result could have been prevented.

Other examples from the case law concern the dismissal with immediate effect. The law prescribes very strictly which requirements have to be fulfilled in order for such a dismissal to be accepted by a judge. Much has been written on the importance of the description of the ground on which the dismissal with immediate effect is based. It is significant to describe the conduct on which the dismissal has 

been based very thoroughly. Many employers make the mistake to claim criminal conduct of the employee, like theft or fraud, which leads to a burden of proof for the employer to establish criminal intensions of the employee. The description of the culpable conduct can make the difference between the acceptance of the dismissal by a court or not and is therefore highly important.

Another important requirement of the dismissal with immediate effect, which is often forgotten, is the immediate and substantiated notification to the employee of the dismissal. The solely notification of the dismissal is not sufficient, the reasons for this dismissal have to be communicated as well. The Supreme Court of the Netherlands has decided this already as early as 23 April 1993 (ECLI:NL:HR:1993:ZC0939).

An example illustrates this situation. An employer who called the employee on the 11th of August with the notification that she is fired, but only gave the reasons together with the confirmation on the 13th of August, fell short on the requirements of the dismissal with immediate effect. It could not be demonstrated sufficiently that the employee was dismissed with immediate effect, because the reasons were unknown on the 11th.

Another important factor in this case was the fact that on the 13th of August the reasons still could not be derived clearly from the send email message in which the dismissal was confirmed. If such a situation would occur in your company, please consult an attorney. In this kind of situations the time to think about possible options is limited, mostly to a couple of days. Use that time to consult properly with an attorney and follow the correct steps, because otherwise you will be cheated in the end.

To consult an attorney in the case of a dismissal with immediate effect is always advisable. In one case an employer was confronted with a ‘sick employee’, who was dancing vividly on photos posted on her social media channels. This is a clear case in which dismissal with immediate effect could be justified, but the judge thought differently. This circumstance, the fact that a photo of the girl dancing when she was claiming to be sick, was insufficient to dismiss. (Judgment of the court Amsterdam of 10 June 2015 (PRG.2015/194). So what for you as employer would be a perfectly normal ground to dismiss is not always legally justified. The advice of an attorney can help in these kind of situations.

I could quote several other examples, but the message is clear. A simple call to an attorney or an extra letter could save tedious proceedings and high costs for employers. Do not hesitate to do this. When you often have legal questions, discuss the possibilities of concluding a legal subscription with which you can ask legal questions for a monthly estimated amount. This lowers the costs and prevents crucial mistakes in the end.