Termination of employment for an urgent cause under Dutch employment law
Category: Employment law
A Dutch employer may dismiss an employee for an urgent cause with immediate effect, in case serious misconduct, theft, drunkenness or an offense. In this case no prior permission by either the court of UWV is required. The employee must with a Dutch employment contract be notified as soon as possible, preferably immediately, about the instant dismissal and it might even be necessary to start conditional termination proceedings before the Dutch court to effectuate the termination of the employment agreement.
Urgent cause for termination under Dutch law
Dismissal for urgent cause is different then dismissal for other (common) reasons such as redundancy. At the moment the employer dismisses the employee with immediate effect the employer has to inform the employee of the urgent reasons. Mistakes is this stage may work against the employer later on in court proceedings. The employer must have very clear and fair ground for immediate termination to be supported by evidence. If you are not sure about your case please consult one of Blenheim;s employment lawyers before the dismissal is announced.
Dutch Court will test urgent cause in procedure
The Dutch court will consider if an urgent cause exists and if the dismissal was done immediately and with immediate notification of the urgent cause. Circumstances the Dutch Court will take into consideration of the case will be considered, such as
- nature of the event
- age of the employee
- length of the employment
- performance of the employee up untill the event
- consequences of the dismissal for the employee.
Dutch court proceedings followed by termination for urgent cause
Proceedings on dismissal for urgent cause can some time; this causes uncertainty for the employer and employee. The employee usually has two possible defences to object wrongful dismissal with immediate effect: (1) there is no urgent reason to dismiss the employee with immediate effect and (2) claim compensation on the grounds of termination without observing the prescribed notice period. Depending on the details of the case other defences may be possible.
Example: Sommelier unlawfully fired for drinking wine during work
The preliminary court in Amsterdam ruled recently on the 17th of February 2014, that a sommelier of the famous Amstel Hotel in Amsterdam was unlawfully fired for drinking wine during his work.
The employee was employed at the Amstel Hotel for over 33 years.
On the 18th of November 2013, the Amstel Hotel organized an event in a theatre in Amsterdam. During this event, the sommelier was on duty.
During his duty, the employer caught the sommelier drinking a glass of wine.
Immediate termination employment contract
The Amstel Hotel fired the sommelier, due to an urgent cause, based on the fact that contrary to the company rules in the employee handbook of the Amstel Hotel, the sommelier was drinking alcohol during his duty.
The employee handbook, applicable to the employment agreement, included a clear smoking, alcohol and drugs policy. The policy prescribed that drinking alcohol during work was prohibited, unless necessary in the professional capacity of the position. The employee handbook also ruled that in case of violation of this policy, it would qualify as a reason for urgent dismissal.
Also, the Amstel hotel claimed that this was not the first time that the employee violated the company policy. On 14 December 2012, the Amstel Hotel had already sent an official warning to the employee with regard to drinking alcohol during work.
Defence employee against termination for urgent cause
The employee resisted against this dismissal because he claimed that an urgent cause was missing and considering the fact that other employees were offered beer at this night as well by the manager. This immediate termination was according to the employee disproportionate. Subsequently, the Amstel Hotel requested the cantonal court in Amsterdam to terminate the employment agreement (for as far as required).
Court judgment on termination for urgent cause
The court ruled that despite the fact that the immediacy of the termination was given and despite the fact that the employee violated the company policy, given the circumstances of the case the conduct of the employee was insufficient to justify immediate termination.
The court ruled that the employer did not apply the company policy consistently and that the employee should be allowed reinstatement. The court hereby also took into account the long and good service record of the employee.
This case shows us that it is not only essential to have a clear policy on alcohol in the hotel and catering industry, but also that the prescribed policy should be observed consistently by the employer.
Also, in case an urgent cause for dismissal appears, prudency is required. The law sets strict rules for urgent dismissal. The cause must be serious and sufficiently urgent and urgent dismissal requires immediate action by the employer. The employee should be informed about the reason for urgent dismissal instantly. Urgent dismissal is a heavy means that requires a careful an tactical approach.
Advice Dutch employment attorney
The employment attorneys of Blenheim are experienced in complex urgent dismissal situations and know exactly how to handle in case of wrongful conduct by employees. We are also experienced in drafting clear and custom made employee handbooks for the hotel and catering industry.
In case you have any questions with regard to termination for an urgent cause or other employment law related questions, please contact us.