High severance pay for employees who was only recently employed

Year of publication

2012


Edition number

209


Reference

Sub-district Nijmegen March 2nd 2012, www.rechtspraak.nl, LJN: BV8433


Decision

A timber yard had to pay a high severance pay to an employee who had only recently been employed because the employee had joined the company through head-hunters and had given up a long lasting employment somewhere else, while the employer could not substantiate his accusation of dysfunction.

Since 1993 the employee had been employed by another company and was approached by headhunters to work for the timber yard as an account manager. He entered service there on September 1st 2010 for a fixed term and, after a positive assessment at the end of June 2011, his contract was continued as an open-ended one from September 1st 2011.

In September 2011, the employer suddenly starts criticizing the employee regarding his sales results and methods. End of November, he is suspended and, when he refuses to agree to a proposal to terminate the employment contract, the employer asks the Sub-district Court to repudiate the employment of the employee without granting a severance pay, due to dysfunction.

This request for repudiation is granted, because the basis for successful further cooperation no longer exists, but the magistrate grants a severance compensation of € 50,000 gross. The employee, whose age does not show from the Magistrate’s decision, had a gross salary of € 4,500 per month. The Magistrate accuses the employer that, apart from to two e-mails from September 2011, he can not prove anything of the alleged dysfunction, while the employee contests everything. Especially after the previous good review and the extension of the em-ployment contract into an open-ended one the employer should have offered the employee some coaching and a serious improvement programme.


Comments

The Sub-district Court awarded a severance payment that was not based on the Cantonal Court Formula. After all, the Cantonal Court Formula is not more than a recommendation and every Magistrate’s is free to derogate. In this case the Magistrate derogated because the employee only had a few years’ service and thus, when applying the Cantonal Court Formula, would only receive low severance compensation, while, in the opinion of the Magistrate, the blame for the dismissal was at the employer.



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