Agreement to Terminate Employment Contract Maintained

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Sub-district Heerenveen, 4th February 2013,, LJN: BZ2863


In spite of the fact that the employer had only awarded limited reflection time to the employee and in spite of the fact that the employee was not provided with any legal assistance, the employee, according to the Sub-district Court, can not nullify his agreement with terminating his employment contract.

Two employees, married to each other, work for the same employer who provides Internet services (web hosting and domain registration). In the past, one of them (the wife) had a firm for hosting activities that later were sold to another company where the married couple then entered service. Next this company transferred its business to the company that now is the employer of both spouses. A conflict with the new employer arises, leading to the reporting ill of one of the spouses (the husband). The Arbodienst (Safety, Health and Welfare Service) concludes that there is no disease, but a labour dispute, and recommends a two-week timeout, during which parties should try to resolve their dispute. The husband’s treating psychologist diagnoses a depressive disorder, a burnout and a post-traumatic stress disorder. Next, the Arbodienst case manager suggests that the husband should terminate his employment contract. Six days later this case manager pays a visit to the couple for which she brings a written proposition to terminate the employment contracts of both spouses. In the conversation with the two spouses the case manager informs them that both of them are said to be guilty of stealing a domain name and of negative statements against the employer, offences that would justify a summary dismissal. Initially, the two spouses did not sign the termination agreements offered, but later that day they called the case manager telling her that, on second thought, they agreed, after which, in the evening, the case manager returned to the home of the married couple. On this occasion, the termination agreements were signed as yet. Thus the employment contracts will end subject to a notice period of over one month. But when, on the final settlement of the employment contract, the employer deducts the repayment of a loan that the previous employer contracted with the two spouses and that was taken over by the current employer from the previous employer, the lawyer of the two spouses alleges nullity of both termination agreements, arguing that an error was made and/or circumstances abused. Regarding the husband he also argued that he had signed under the influence of a mental disorder, referring to the diseases the psychologist diagnosed and the use of medication (an antidepressant).

It comes to a lawsuit at the Sub-district Court, in which both spouses claim continued wage payment. The magistrate takes the view that the termination agreement is a settlement agreement within the meaning of the law, i.e. an agreement whereby a dispute between parties is settled or an imminent dispute is avoided. When it comes to termination of an employment contract, the employer, so the Magistrate holds, should not too easily rely on it that an employee agrees with voluntary termination of the employment. There has to be a clear and unambiguous statement of the employee, while the employer may have the obligation to investigate whether the employee actually agreed with the termination of the employment contract.
As for the appeal to an error, the Magistrate states that one should be hesitant to deal with an appeal to an error if it handles a settlement agreement. According to a judgment of the Supreme Court, parties may not make an appeal to an error in respect of that which the parties argued about or of what the uncertainty was about, since that is exactly what they settled in the settlement agreement. But an appeal to an error is possible if there would have been a misconception regarding what certain and undisputable elements parties based their agreement on, since in that case the misconception has not been settled between the parties in the settlement agreement. The Magistrate rejects the appeal to an error because he thinks it is unlikely that both spouses had a misrepresentation regarding the question whether there really was a substantial reason for summary termination. In fact, they had informed the employer that they had agreed on the settlement because of the disturbed employment relationship and because of the husband’s health.
The Magistrate also rejects the appeal to abuse of circumstances. This is the case when someone knows or should understand that special circumstances, such as an emergency situation, dependence, frivolity, an abnormal mental state or inexperience move the other to perform a legal act while this other person knows or should understand that he should have prevented him from performing this act. The mere fact that the husband had mental problems, according to the Magistrate, was no reason to stop the employer from making the settlement agreement. The husband’s mental problems were not serious enough for this and the wife did not have any at all. The conversation with the Arbodienst case manager also did not appear out of the blue, the Magistrate states, but was the next step in a process already under way in order to come to termination of the employment contract, in consideration of the breach of the employment relationship.
Finally, the statement that the husband had a mental disorder preventing him to decide on his own, the Magistrate considers insufficiently proven by the reference to the psychologist’s diagnosis and the use of an antidepressant only. Eventually, the termination agreements maintain validity.


In this judgment the Magistrate in particular attaches importance to the fact that there was a settlement agreement. When parties settle a dispute in a settlement agreement, it is not easy to nullify such an agreement afterwards. That would imply that parties might continue disputing what kept them divided, whereas their intention precisely was to settle this in the settlement agreement. Only if there had been a misconception regarding any view when entering into the settlement agreement and the parties did not have a dispute on that particular point, a settlement agreement can be nullified on grounds of error. It looks as if, in this case, the Magistrate judges the employees (who were pressed for money ) on the fact that they are did not start opposing the termination of the employment contract until it became clear that the employer was also going to settle repayment of the loan with the employees. The employees can be blamed to thus have created the impression that they did not so much object to the termination of the employment contract as well to the fact that they were actually not going to receive the amount of money for the final payment of the employment relationship.

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