Does an Employment Contract End by the Employer’s Notice of Termination?

Does an Employment Contract End by the Employer’s Notice of  Termination?
Date: 27-01-2024
Year of publication en number of publication: 2024 / 537
Reference: Supreme Court, 26 January 2024, ECLI:NL:HR:2024:111

An employer who gives notice of termination of the employment contract, even it involves a breach of the law, is not obliged to check whether the employee has understood that the employment contract has been terminated. In principle, the employer does not even have to inform the employee about the consequences of the termination.
Since 2016, an employee had worked as an archaeologist at a Belgian explosive ordnance disposal company. The employment contract fell under Dutch law. The Dutch Court had also been declared the competent Court to decide on disputes arising from the employment contract.
In October 2018, the employee became ill. The employer then discontinued paying the salary. On December 21, 2018, the employer sent the employee a letter. It stated that the facility in the Netherlands would be closed due to shortfall in employment. The letter further stated that the employment contract with the employee permanently and with immediate effect would be terminated. If the employee wished so, he could get an employment contract in Belgium but, in that case, he would have to work full-time in Ghent. The subject at the top of the letter mentioned “dismissal due to closure”.
In summary proceedings the employee then claimed a provisional provision seeking payment of wages from the moment he had reported ill in October 2018. This claim was granted by the Sub-district Court. On appeal, however, the sentence was quashed and the employer was ordered to only pay the wages until the moment at which the employment contract was legally terminated.
The employee then initiated proceedings in which he demanded a ruling that the letter of December 21, 2018 had not terminated the employment contract. The Sub-district Court, however, ruled that the employee should have understood that the employer's letter really had terminated the employment contract. Since, subsequently, the employee had not submitted a request for annulment of the (notice of) termination, it had been established, according to the Sub-district Court, that the employment contract had ended on December 21, 2018.
On appeal, the Court of Appeal confirmed the Sub-district Court’s judgment.
The Court pointed out that termination of an employment contract is a unilateral legal act in which the employee is just the named addressee. The employee is not needed for performing a legal act. According to the Court, the employer's wish to terminate the employment contract could not have been clearer. The Court of Appeal rejected the employee's claim that the employer should clearly and unambiguously have stated that he wished to terminate the employment contract and that, subsequently, he should have checked whether the employee had understood the message. These requirements only apply if an employee terminates the employment contract and serve to protect the employee from serious consequences of voluntarily terminating the employment contract, such as the loss of dismissal protection, or of an unemployment benefit.
When the employee lodged an appeal in cassation, the Supreme Court reached the same conclusion as the Court of Appeal. The criterion of a clear and unambiguous statement applies when an employee voluntarily terminates the employment contract and does not apply when it has to be assessed whether the employer's statement constitutes a termination of an employment contract. Whether the employer also has to check if the employee has understood that the employer has terminated the employment contract, and whether he also has to inform the employee, will depend on the circumstances of the case, according to the Supreme Court.
The Supreme Court did deal with the Court of Appeal's ruling in cassation, because the Court of Appeal had assumed the end of the employment contract on the date of the employer's letter (December 21, 2018) instead of on the date on which that letter had reached the employee (December 31, 2018). This earned the employee no more than ten days' wages, however.


A Court decision does not always reveal everything that played a role in the background, but in this case there is substantial evidence of legal tinkering from both sides.

First, a Belgian employer thought that he could do without the advice on Dutch employment law when terminating an employment contract. Of course, termination of an employment contract due to the closure of the facility in the Netherlands was voidable due to lack of the UWV permission or the employee’s consent.
Another failure was that no notice period had been observed.
Then, the employee had failed to request the Sub-district Court to annul the (notice of) termination within the two-month expiry period. As a result, it was established that the employment contract was ended by termination. For that reason, the obligation to pay wages, initially imposed by the Sub-district Court on the employer without further obligation, but, on appeal rightly limited to the moment at which the employment contract would legally end, also ended.
The employee tried to do the right thing by accusing the employer that he should have been more specific that the employment contract would end and that he should have checked whether the employee had understood the message, but, unfortunately, to no avail.
Nevertheless, no matter how voidable and contravening the law the decision was, the employer's statement did not leave any room for misinterpretation and the employer was under no obligation to check -as in the case when the employee had voluntarily terminated the employment contract- whether the employee had understood that the employer had terminated the employment contract, or to inform the employee about the consequences of the termination.
All the employee should have done, of course, was to simply invoke the annulment of the (notice of) termination within two months.
If the employee was legally assisted at the time, he may still be able to claim compensation on grounds of a professional misconduct of his legal advisor.