Compensation due to irregular termination of an employment agreement with a specified duration

Year of publication

2010


Edition number

183


Reference

Sub-district court judge, Wageningen 12th May 2010, www.rechtspraak.nl, ljn: BM6974


Decision

An employee has been working in the distribution centre of a transport company since 15th July 2009 on the basis of an employment agreement for one year. This employee previously also worked at the company on the basis of an apprenticeship agreement. The employment agreement for specified duration also provides for the possibility of premature cancellation.

On Friday 9th October, the employee reported sick complaining of dizziness on the return journey following the end of a training session. He worked on Monday 12th October 2009, but did not do so on the following day. During the week of 19th October 2009, the em-ployee was on holiday. The employee could not be contacted during his illness. He did not respond to calls from the employer to his mobile phone and landline, nor to a text message. However, on 16th October 2009, the employer spoke to the sister of the employee who said that the em-ployee was not ill at all. Therefore, on 21st October 2009, the employer sent a letter to which the employee also did not respond. As a result, the employer informed the employee by means of a letter dated 28th October 2009 that it regarded the employment agreement as terminated.

In a letter dated 19th November 2008, the legal adviser of the employee responded saying that it is a case of reversible dismissal. However, instead of invoking the nullity of the employer’s decision, he claimed compensation in the amount of the salary that the employer should have paid until the end of the employment agreement (eight monthly salaries).

This led to a procedure before the sub-district court judge who began by stating that employer’s summary dismissal of the employee was null and void because it was given by means of a letter of 28th October 2009 with retrospective effect to 9th October 2009. The dismissal therefore did not fulfil the requirement that the urgent reason for the summary dismissal must be communicated immediately. Since there was also no dismissal permit issued, the dismissal is indeed reversible. This also means that the employer must pay the compensation claimed by the employee. According to the sub-district court judge, the possibility of premature cancellation of the employment agreement does not alter this because there was no such cancellation and no dismissal permit was requested. However, the behaviour of the employee gave the judge cause to reduce the compensation claimed by around a half.


Comments

An employee who is wrongfully subject to summary dismissal can invoke the nullity of the dismissal and claim continued payment of wages and indeed, this is generally what happens. However, the employee can instead also accept the dismissal as a fact and claim compensation due to the fact that the employment agreement has been terminated without taking into account the period of notice. Since an employment agreement for a specified duration cannot generally be cancelled prematurely, this usually entails compensation in the amount of the salary for the remaining duration of the employment agreement. However, in this case there was the possibility of premature cancellation. As a result, in our opinion the sub-district court judge should have limited the compensation to the amount of the salary up to the end of the period of notice. The fact that there was no cancellation does not alter that fact since the compensation by definition takes the place of the salary which should have been paid if there had been a cancellation. The fact that no dismissal permit was requested is also not of importance because that leads to the nullity of the dismissal, which the employee had not invoked. Therefore, in our opinion the sub-district court judge was wide of the mark in this case. The ruling does show however that employers must be careful when summarily dismissing an employee who is employed on the basis of an employment agreement with a specified duration. The possibility that the salary must be paid until the end of the employment agreement in the event of the nullity of the dismissal exists, especially if no possibility of premature cancellation is stipulated.



Leave a comment


Name: *
E-mail address: *
Your comment:
Fill in the code: *


Reactions


No comments.