Dismissal under the WSA
Since the adoption of the Work and Security Act many people speculated on the question whether a district judge will or will not approve a dissolution of a contract. How does he interpret the mandatory grounds of dismissal and how strict are the judges? Does the lower transition compensation play any role?
Three situations of dismissal
In this article three situations of dismissal are discussed, which will give you some guidance with similar situation in your own environment. The situations will discuss the best way to deal with these cases.
Specification of holiday
The first case came before the district court of Amsterdam. It concerned an employee who had a contract it which is was stated that when a holiday was noticed before the 15th of March, the employee was in principle entitled to that holiday. This employee however did only notice his intentions to be off from work in the first three weeks of summer holiday to his employer on the 1st of June. This conflicted with another employee’s plans who wanted to have holiday at the same time and because of the late notice of the first employee he did not get the holiday of his wishes. The employee nevertheless notified that he would go on holiday anyway on which the employer responded with putting him on non-active. Furthermore he started a dismissal procedure on the ground of culpable behaviour and a disturbed employment relation.
The judge did found that the employee was culpable in this case, but he did not find however that a dismissal could be justified. This was because the other employee already agreed on his holiday in October 2014, an agreement of which the first employee was not notified. Furthermore the employer could have discussed with the employee for an alternative solution, which was not possible due to the non-active status of the employee. Because there were no further incidents during the employment relation, the district judge dismissed the request for dismissal.
Throwing a Stanley knife
A request of dismissal with immediate effect was not approved by the district court of Groningen, in a case were a frustrated warehouse employee threw a Stanley knife at a colleague, who was acting annoying.
The judge deemed it important that the colleague showed annoying behaviour, but also argued that warehouse employees work in an environment where employees deal differently with irritations, compared to employees in higher positions. The judge did acknowledge that a line was crossed by throwing the knife, but that did not justify a dismissal with immediate effect. A warning would have been more effective. In this judgment it also counted that the employees worked harmoniously together earlier that day and that the dismissal with immediate effect was only given at the very end of that day. The employer therefore did not seem to find the situation so severe that a dismissal on the spot was necessary. Furthermore the circumstances of the case were not clear, because the employer did not state whether the knife was thrown directly with the intent to hurt and whether the knife was open or not. These circumstances could have changed the outcome of the case.
Not showing up
The last case was dealt with by the district court of Eindhoven and concerned a roofer who was working already for 15 years for his employer, a sole proprietor with him as only employee. The employer and employee always worked together on projects and they had a strong bond. The employer had to dismiss the employee nevertheless because he did not show up for work on a regular basis without a valid reason. When this happened again in June 2015 the employer send a warning letter with a notification of a one-week suspension. After this suspension he had to start working again, which he did not do and he was therefore dismissed with immediate effect. The employer also started a procedure to dissolve the employment contract in the case that the immediate dismissal would not hold up in court.
The situation was not severe enough for a dismissal with immediate effect, but the dissolution procedure did come through for the employer. By not showing up for work on a regular basis the employee was grossly neglecting his duties and hurt the business of his employer with his behaviour. The employee was warned on multiple occasions but did not change his behaviour. Not only did the judge dissolve the employment contract, he also denied a transition compensation in this case.
These cases show that judges have become stricter in employment cases, but also show that the circumstances of a case are heavily determining the outcome of a case. Will a dismissal be approved or not?
When you are dealing with a similar situation and would like advise, please contact our attorney, mr. Suzanne van Dijsseldonk.