Dismissal process. Legal requirements in The Netherlands. Avvocati Ius Lavoristi Italiani Congresso Nationale, Genova, 19-20 September 2014. The employer who intends to terminate an employment contract has four options:.
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Legal requirements in
Avvocati Ius Lavoristi Italiani
Congresso Nationale, Genova, 19-20 September 2014
Options 1, 2 and 3 will be explained in the next slides
Submit written application for a dismissal permit at the UWV -> must contain the dismissal ground + supporting documentation
Possibility employee to submit statement of defens
Approval: notice of termination
< 5 years 1 month
> 5 years - < 10 years 2 months
> 10 years - < 15 years 3 months
> 15 years 4 months
if the noticeperiod is notrespected the employee can claim compensation
Rejection: Remains employed
The is no appeal possibleagainst the decision of the UWV
Manifestly unreasonable dismissal; employee can start legalproceedingsclaimingthatdismissal was ‘manifestlyunreasonable”. Ifso, the employer must compensate the actualdamageincurredby the employee
The UWV is not in a positiontoimpose severance pay
Request sustained: end contract
Requestdenied: no termination of contract
No possibilityto appeal!
The amount of severance pay is calculated on the basis of a judicialformula:
A (weighedyears of service) x B (grosspayment per monthx C (correction factor)
A is years of service until the age of 35 count for 0.5;
between 35 and 45 for 1;
between 45 and 55 for 1.5 and as from 55 for 2.
B is the gross payment per month, including other fixed elements of remuneration, such as holiday allowance, 13th month and average bonus (if structural)
C is correction factor. If neither party is to be blamed for termination it will be set at 1.
If the employer is to blame it will be adjusted upwards, while it will be adjusted downwards when the employee is to blame.
Means conduct or characteristics of the empoyeewhich the employercannotreasonablyberequiredtoallow, such as fraud, theft etc.
Urgent cause: serious misconduct
Communicatedto employee as soon as possible (preferablywriting) afterhavinggiven the employee the opportunity todefend/respond
End of contract
Termination is void
Transition budgets serve as a compensation for termination of an employment contract and as assistance to transition an employee to alternative employment. The transition budget amounts the first ten years 1/3 of a monthly salary for each year of service. After these ten years the transition budget amounts to ½ of a monthly salary for each year of service. A transition budget cannot exceed € 75,000.
Reasons related to the ‘person’ of the employee
Termination with/without additional compensation
No termination: remains employed
New: Court of appeal
If the employer and employee agree to terminate their employment relationship by mutual consent, a mandatory two weeks reflection period will apply, during which the employee can revoke his or her consent to the termination of employment without reason.
Employee 14days reconsider
North America: consent is void, except:Mexico - United States
Central & South America: Argentina - Brazil - Chile - Colombia - Panama - Peru
Western Europe: Austria - Belgium - Cyprus - Denmark - Finland - France - Germany - Greece - Ireland - Italy
Luxembourg - Netherlands - Norway - Portugal - Spain - Sweden - Switzerland - United Kingdom
Eastern Europe: Czech Republic - Estonia - Hungary - Latvia - Lithuania - Poland - Romania - Russia - Slovakia - Turkey - Ukraine
Middle East & Asia Pacific: China - India - Israel - Japan - Korea, Republic of - New Zealand - United Arab Emirates