Dismissal law includes all regulations that are important when terminating an employment contract. In broad terms, these regulations mean that the employee enjoys a high degree of protection vis-à-vis the employer. As a rule, an employer cannot simply dismiss an employee. In most cases, a proposed dismissal must be assessed in advance by the CWI (Centre for Work and Income) or the Subdistrict Court. The CWI or the Subdistrict Court must assess whether the dismissal application is based on demonstrable facts and legally permitted grounds. If this is not the case, the application will be rejected. An employer must therefore properly substantiate the dismissal request. The grounds for dismissal can vary from reasons inherent in the employee (for example, poor performance) to business economic reasons. In addition, an employer must take into account that there may be special dismissal protection, such as in the event of illness or pregnancy. Even if it later turns out that a dismissal once granted did not meet the legal requirements, a judicial review can still take place in most cases.
If there is a very serious and urgent reason, immediate dismissal can be given (or taken). The number of cases in which summary dismissal is permitted is very limited. An employment contract can also always be terminated by mutual consent. However, an employee must take into account that a resignation or dismissal by mutual consent jeopardizes any unemployment benefits claims. It is therefore important not to agree to dismissal too quickly. If in doubt, we recommend that you seek legal advice.
An employment contract can be terminated by the employer through a dismissal permit. A dismissal permit must be requested from the CWI. If the application is approved, the employer with the permit can terminate the employment contract, taking into account the applicable notice period. The employment contract can also be terminated through the intervention of the Subdistrict Court. At the request of the employer or employee, the Subdistrict Court can terminate the employment contract. In such a procedure, the employee may be awarded severance pay, also known as severance pay.
During the probationary period, both the employer and the employee can terminate the employment contract with immediate effect. The statutory notice provisions do not apply to dismissal within the probationary period. A probationary period must always be recorded in writing, otherwise it is not valid. For indefinite-term employment contracts, a maximum trial period of two months applies. For a fixed-term employment contract lasting less than two years, the probationary period is a maximum of one month, unless an extension to two months is permitted by collective labor agreement. For a fixed-term employment contract of two years or longer, the maximum trial period is two months.
A fixed-term employment contract generally ends by operation of law when the period for which it was entered into has expired. The employment contract does not end if it has been agreed that notice of termination is required. In that case, termination is only possible if a dismissal permit has been granted.
By answering the questions in our dismissal guide, you will get a good idea of your legal position and your options in a possible dismissal procedure.
What am I doing good, you ask?
Do you know the terms “good employer” and “good employee”?
The employer is expected to handle the employee’s interests carefully and decently. He expects the employee to show his/her best efforts within the limits of the possible agreements.
For the employee, this means that he is committed to delivering the agreed work performance.
In practice, this relationship regularly gives rise to problems. These are often resolved. Sometimes the problems are so serious and persistent that they lead to labor disputes that, if they cannot be resolved, lead to dismissal.
Changing circumstances, namely bad business economics and the company wanting to change, often lead to reorganization and dismissal. The way in which these matters are implemented often gives rise to conflicts. Works councils and trade unions then play an important role.
In our view, the conflicting interests of employee and employer cause many avoidable conflicts. People (both employers and employees) often make the understandable mistake of prematurely seeking solutions to problems in legal matters. Dismissal procedures mainly test procedural care. If something is wrong, which is usually the case, the results of legal treatment become increasingly unpredictable.
Why does this go wrong so often? Because the legal system provides no more than a legal assessment framework in which people are expected to solve problems based on their own responsibility.
Legalizing too early and not communicating more or differently usually leads to issues polarizing uncontrollably to a greater or lesser extent and leading to an unpredictable decision with major consequences when dealt with by the court. At that moment you see that it would have been better to prevent that progression, but the way back is now closed.
Strategy and tactics to prevent these effects are available..
Labor law procedurally ensures that employees are equal to the employer in a dismissal or conflict situation.
Preventing the conflict or escalation is best. How do you ensure this (?). By means of:
to ensure equality in the handling of problems;
to give continued respect to persons and their interests;
to explore possibilities for a solution in joint consultation.
You are of course always free to appeal to the judiciary, but do this first (if possible) when you are sure of your case and other avenues for reaching a solution are closed.
Employees who are not sure of their equality and possibilities give themselves the best opportunity to first enter into consultation through advocacy.
Employers who are not sure of their case or want to act carefully and preventively in a timely manner use mediation.
Care, giving the best effort, decency, reasonableness and fairness, that’s what it’s all about.
Finally, don’t play your own judge. Then things can end badly. That is what legislation and case law are designed to do.