Petition Submitted One Minute Late

Year of publication

2016


Year of publication

270


Reference

Sub-district Almere, March 31, 2016, www.rechtspraak.nl, ECLI:NL:RBMNE:2016:1803


Decision

An employee who could not agree with termination of the employment contract by the employer by November 1, 2015 asked the Sub-district Court to nullify the notice for termination of the employment contract and to reinstate the employment contract. Since the Court received the employee’s petition, which was sent by fax, at 00.00 on January 1, 2016, the two-month period for submitting the petition had expired.

The UWV had given permission to a health care institution to terminate the employment contract with a restaurant employee. The health care institution used this permission in a letter of August 27, 2015 to terminate the contract per November 1, 2015 with a two- month notice period. The employee, however, felt that the health care institution had made insufficient efforts to redeploy the employee. Moreover, she felt that she had been incapacitated for work since January 2015 and that the notice for termination of the employment contract had been contrary to the prohibition on termination during illness. That is why she asked the Sub-district Court to nullify the termination notification and to order the health care institution to reinstate the employment contract. She also requested the Sub-district Court to grant her a "reasonable (transitional) allowance" at the expense of the health care institution.

As for the nullification of the notice and the reinstatement, the Sub-district Court states that its competence to do so expires two months after the date on which the employment contract has terminated. The employee’s petition was received at the Office of its Clerk at 00.00 on January 1, 2016. Therefore, according to the Sub-district Court, the requests were submitted late, even if it was extremely slightly. The Sub-district Court refers to the fact that the core of a deadline is that it is fatal and that it can not be extended. Since exceeding the deadline results in expiry of the right, the Sub-district Court rejects the employee’s requests, so the Sub-district Court needs no substantive assessment.

The Sub-district Court does assess the request to grant a transitional allowance, however, since this request is subject to a three-months expiration period and thus was submitted in due time. However, during the hearing, the applicant acknowledged that, under the applicable collective agreement, she receives a supplementary allowance from the health care institution.

According to the transitional regulation on the revision of the dismissal law, this means that no transition allowance is due. Therefore, also the request for a transitional allowance is rejected.


Comments

The new dismissal law, applicable since July 1, 2015, not only provides very short periods for making claims (usually two or three months), but it also defines that these periods are expiry period and no limitation periods. Different from a limitation period an expiry period can not be extended by "interruption" (e.g. by sending a warning). Another difference with a limitation period is, that the Court also has to apply an expiry period even if not invoked by the other party.

In this case, the fax transmission (note: even sent on New Year's Eve!) was sent only one minute late, which of course was particularly unfortunate for the employee.

The Sub-district Court’s decision shows that expiry periods should be taken very seriously. This is also the case when the employer does not pay the transitional allowance.

If not within three months, the employee has submitted a petition to the Sub-district Court, asking to order the employer to pay the transitional allowance, this payment can no longer be enforced.

In this case, the petition was not only submitted too late, but also not very professionally prepared. The law provides for a transitional allowance and, in addition, the possibility to grant a "fair compensation". Therefore, the employee’s claim for a "fair (transitional) allowance" was inadequate. Moreover, the transitional allowance arises under the law and is not granted by the Court. So the employee did not have to claim the allowance. Instead she should have claimed an order to pay it.



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