Redeployment: how, what and when?
Full ground for dismissal
Most people know that since the instalment of the Work and Security Act, dismissal has become harder. This is because a set of grounds for dismissal have been enlisted in the law and a legal dismissal must be grounded fully on one of these grounds. This means that all criteria of a particular ground for dismissal must be met, before a judge can terminate the employment contract.
The redeployment obligation
There is however another condition present in the law which – besides the full ground for dismissal – must be fulfilled. This is the condition ex art. 7:669 DCC, which stipulates that an employer only can terminate the employment contract when there is no possibility for a redeployment in a suitable position, within a reasonable period. An exemption to this, is the dismissal with immediate effect. In such a case an employer is not expected to redeploy the employee within the company.
The case law until now
The case law, as always, must complement what the law has stipulated about the redeployment condition. Since the instalment of the WSA several judgments have been issued, which will be discussed in this article.
Obligation of effort
This district judge of Amsterdam has determined that the redeployment obligation entails an obligation of effort and not an obligation of result. Employers must try their very best to redeploy the employee, but do not have to create a new position or change their operations just for the sake of redeployment.
Temporary staff, vacancies and holding structures
It can be expected that the positions of temporary staff or employees with a temporary contract, from which the service period will end on short notice, can function as a position on which an employee whose contract has been terminated could be redeployed. Other possibilities are open vacancies or short-term vacancies. When a holding structure is being used, it could be expected of the employer to look within its other subsidiaries for possibilities for redeployment.
With regards to retraining it is expected that the employer makes some effort for the employee, as can be derived from a judgment from the district court of Amsterdam. When there is a position available in the company, but the employee is not fully suited for that, the employer can be expected to remove obstacles or let the employee follow a short retraining, in order for him to fill in that position in the end. An employer must demonstrably put effort in the redeployment, before he can go to the Employment Insurances Agency or the judge to ask for termination of the contract.
With redeployment the new position does not have to be the exact same, but suitable. This position must therefore respond to the education, experience and competences of the employee. In the dismissal arrangement it is stated that it must be a position on a similar level. However, when the ground for dismissal is non-performance, it can also be a position on a lower level, as determined by the court of Northern Netherlands.
The choice of the employer: who…
When multiple employees are being dismissed and there only exists one or at least too little positions, an employer can choose between the soon-to-be-dismissed employees who is the most suited for the respective position. This does not count when a full position falls away and a part of the activities will be continued in a non-transferable new position. The employer then cannot choose and the principle of reflection must be taken into account. The employee with the longest service period must be placed in the new position, which makes it possible that this is not the most suitable employee.
A reasonable period, how long for a redeployment?
The last requirement which has not yet been discussed, concerns the reasonable period. Luckily the dismissal arrangement offers clearance. In art. 10 it is stipulated that the reasonable period is equal to the legal notice period for this particular employee. When parties agreed a different period in the labour or collective agreement, the legal period stays intact. When the dismissal involves a disabled employee a much longer redeployment period of 26 weeks is applicable. The period runs from the day that the notice of termination of the service period has been issued. From that moment the period begins when the employer should look in the near future for possible positions and which positions could be suitable for the employee. When there are no redeployment possibilities this must be obtained in the notice of termination.
When you are intending to dismiss one or several employees and you want to know more about your duty of effort, or when you are an employee for which termination has been requested, without compliance with the redeployment obligation, please contact Suzanne van Dijsseldonk LLM.