| Advocatenkantoor Bolton 2022 | Rennemigstraat 17 A | | 6413BR | Heerlen
Termination of the employment contract in Holland | Dismissal
The
termination
of
employment
contracts
differs
markedly
from
most
foreign
legal
systems,
in
particular
with
respect
to
the
well
evolved
degree
of
protection
against
dismissal.
There
are
five
ways
in
which
contracts
of
employment
may
be
terminated
under
Dutch
law:
1.
During
the
trial
period;
2.
By
notice;
3.
By
mutual
consent
/
termination agreement; 4. By summary dismissal; 5. By judicial termination.
Termination of the employment contract - 5 modes
1. Termination during trial period - proeftijd
During
the
trial
period,
proeftijd,
either
party
may
terminate
the
contract
of
employment
at
will.
Termination
is
with
immediate
effect
and
without
prior
notice.
A
contract
for
a
definite
period
of
1
year
has
a
maximum
trial
period
of
1
month.
The
trial
period
with
a
contract
for
an
indefinite
period
may
not
exceed
2
months.
However,
a
collective
labour
agreement
(CAO)
may
stipulate
otherwise.
2. By notice - voorafgaande opzegging
With
respect
to
termination
by
notice,
opzeggen
van
de
arbeidsovereenkomst,
there are contracts for a definite period and contracts for an indefinite period.
Contracts for a definite period | temporary contract
A
contract
of
employment
for
a
definite
period,
arbeidsovereenkomst
voor
bepaalde
tijd,
terminates
by
operation
of
law
at
the
end
of
this
period
without
prior
notice.
Neither
the
original
nor
extended
term
of
a
contract
for
a
definite
period
may
be
terminated
by
notice
before
the
expiry
of
the
period,
unless
agreed
to
by
parties
otherwise.
However,
a
contract
for
a
definite
period
may
still
be
terminated
by
mutual
consent,
summary
dismissal or judicial termination.
Since
January
1,
2020,
a
temporary
contract
will
automatically
change
into
a
permanent
contract
if
an
employee
has
received
more
than
3
consecutive
temporary
contracts.
Or
if
an
employee
has
had
several
temporary
contracts
with
his
employer
for
more
than
3
years.
(Unless
there
are
other
rules
in
the
collective
labor
agreement
/ CAO ).
Contracts for an indefinite period | permanent employment contract
An employee automatically receives a permanent employment contract when:
•
there
are
several
temporary
contracts
with
the
same
employer
for
more
than
3
years.
Or
for
the
same
type
of
work
with
successive
employers.
(example;
started
work
through
an
employment
agency
and
later
directly
at
the employer with a temporary contract);
•
a
maximum
interval
of
6
months
between
the
contracts.
For
temporary
recurring
work
(not
limited
to
seasonal
work)
that
can
be
done
for
a
maximum
of
9
months
per
year,
there
may
be
a
maximum
of
3
months
between the contracts. This must be included in the collective labor agreement/CAO;
•
There
are
no
other
conditions
in
this
regard
in
the
collective
labor
agreement
CAO.
The
agreements
in
the
collective labor agreement take precedence.
A
permanent
employment
contract
/
contract
for
an
indefinite
period
(arbeidsovereenkomst
voor
onbepaalde
tijd)
as
"indefinite"
implies,
does
not
expire
on
a
particular
date
but
continues
indefinitely
until
terminated
by
notice,
or
by
one
of
the
other
methods
discussed
in
this
section.Before
notice
may
be
given,
permission
from
the
labor
office
UWV-Werkbedrijf
must
be
obtained.
Without
UWV-approval,
the
notice
is
void.
However,
approval
is not required in case of:
•
termination
•
during the trial period,
•
by mutual consent,
•
by (justified) summary dismissal,
•
in the event of bankruptcy or receivership of the employer
The
labor
office
UWV
will
only
grant
a
permit
if
the
proposed
termination
is
deemed
objectively
reasonable.
The
employer
must
therefore
indicate
the
grounds
on
which
his
request
is
based
while
the
employee
against
whom
it
is
made
may
submit
a
defence,
verweerschrift.
Thus,
permission
is
not
granted
automatically
as
a
simple
posterior
formality.
The
whole
procedure
normally
lasts
eight
weeks
although
in
practice
it
may
take
longer
if
a
hearing
is
scheduled
or
further
documents
are
requested
as
evidence.
This
can
be
the
case
if
the
proposed
layoff,
redundancy
or
downsizing
is
based
on
business
economic
reasons,
called
ontslag
wegens
bedrijfseconomische
omstandigheden.
Then
the
employer
must
provide
a
financial
report
by
an
accountant
that
proves
that
there
has
been
a
dowturn
in
business
for
the
past
3
fiscal
years
and
that
downsizing
the
workforce
is
the
most
cost
effective
measure.
3. Termination agreement - beëindigingsovereenkomst
Contracts
of
employment
for
definite
and
indefinite
periods
may
be
terminated
by
mutual
consent,
beëindiging
met
wederzijds
goedvinden.
No
notice
is
required.
Case
law
has
established
strict
requirements
with
respect
to
the
validity
of
the
termination
by
mutual
consent
since
this
often
has
detrimental
consequences
for
the
employee
(for
example,
if
the
statutory
notice
period
hasn't
been
observed
loss
of
entitlement
to
unemployment
benefits
for
the
duration
of
said
period,
called
fictieve
opzeggingstermijn).
In
order
for
it
to
be
held
valid,
the
employee's
consent
must
have
been
given
explicitly
and
unequivocally.
Termination
is
therefore
usually
in
the
form
of
a
written
agreement,
beëindigingsovereenkomst
or
vaststellingsovereenkomst.
A
good
criterium
is
that
the
employee must not be at a disadvantage (financially) when compared to a regular termination by notice.
4. Summary dismissal - ontslag op staande voet
If
an
urgent
cause
exists,
an
employer
may
summarily
dismiss
an
employee.
It's
known
as
ontslag
wegens
een
dringende
reden
or
ontslag
op
staande
voet.
In
such
a
case,
the
contract
of
employment
is
not
terminated
by
notice
but
with
direct
effect.
Consequently
the
provisions
which
apply
to
termination
by
notice
do
not
have
to
be
observed.
An
urgent
cause
consists
of
a
situation
which
is
such
that
the
employer
cannot
reasonably
be
expected
to
allow
the
employment
to
continue.
Clear
examples
are
theft,
fraud,
embezzlement
or
divulging
confidential
information
to
third
parties.In
most
cases,
however,
an
urgent
cause
depends
on
the
specific
circumstances
of
the
case.
If
an
employer
is
hesitant
in
effecting
a
summary
dismissal
-
such
as
instant
removal
from
the
workplace
- it will be void regardless of whether an urgent cause did actually exist.
5. Judicial termination - ontbinding door de kantonrechter
Both
employers
and
employees
may
request
that
the
tribunal
-
the
cantonal
judge
kantonrechter
-
terminate
a
contract
of
employment
on
the
grounds
of
"serious
cause".
It's
known
as
gewichtige
reden.
A
serious
cause
will
be
deemed to exist if either:
I. the circumstances are such that they would have amounted to an "urgent cause" for summary dismissal if the
contract had been terminated instantly; or,
II. there is a change of circumstances of such a nature that the contract should in all reasonableness be
terminated instantly or on short notice. The employee may submit a written defence, verweerschrift. If the court
deems that serious cause does indeed exist, it will terminate the contract. If it is granted on the basis of serious
cause due to a change in circumstances, the court may award the employee compensation in an amount which it
deems reasonable. Compensation is calculated using a formula called transitievergoeding
Compensation is calculated according to the transitievergoeding. Contact us for more information.
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