Stephanie Dijkstra is a Third Culture Kid in every possible way. Raised in four countries by Dutch/A...
Dutch employment law - Part 325 March 2013, by Stephanie Dijkstra
Procedure before the UWV Werkbedrijf
If your employer wants to terminate an employment agreement by going through the UWV WERKbedrijf, he must specify the reasons for the dismissal, such as economic grounds, poor performance on your part, long-term illness (in principle two years) or "insurmountable problems," and provide evidence of this.
You may submit a written defence, after which the UWV WERKbedrijf can decide to give both parties the opportunity to react. The UWV WERKbedrijf comes to a decision after consulting with a committee consisting of an equal number of representatives from employers’ organisations and trade unions.
The procedure is rather time-consuming and normally takes anywhere between two to four months.
The UWV WERKbedrijf does not decide whether a severance package is appropriate, but only whether your employer may give notice of termination. You may still take the employer to court and sue for an adequate severance package.
If you become ill (or pregnant) before or on the day the request for a dismissal permit is filed or permission is granted, a notice prohibition applies.
Procedure before the Court
Each party may request the competent court to terminate the employment agreement on the basis of serious cause. Serious cause can be an "urgent cause" that has not previously been invoked or a change in circumstances of such a nature that the employment should be terminated instantly or on short notice.
The procedure is widely used as an alternative to the UWV WERKbedrijf-procedure and usually does not take more than two to three months, and the court does not have to take into account the legal notice period. The decision of the Court is not subject to appeal.
Contrary to during the UWV WERKbedrijf-procedure, the court can terminate an employment agreement even if you are ill. The court will, however, investigate whether or not the request is related to the illness. If it establishes that this is indeed the case, the request will be denied.
When terminating an employment contract for an indefinite period of time, your employer must apply a notice period of 1-4 months, depending on your period of employment (this does not apply when the employment contract is dissolved by the courts). In the case of other contract forms, such as a contract of temporary employment, termination can be with immediate effect.
For an employee, the notice period is always one month, unless, either in the employment contract or in a separate written agreement, the employer and the employee agree upon a different notice period.
Whereby it should be noted that any personally agreed-upon notice period for the employee is doubled for the employer (i.e. if an employee agrees to a two-month notice period, the employer must agree to give four months’ termination notice). Collective agreements can provide for different (even equal) notice periods.
Photo by Flickr user Victor1558
There are no statutory rules on severance payment and the court judges the necessity for compensation in each individual case, based on the probably deliberately vague standard of "reasonableness."
Severance payment can be granted either as a lump sum, or as a periodically paid supplement to the unemployment benefit. A few years ago, the courts introduced a calculation formula, known as the cantonal court formula (kantonrechtersformule), according to which the employee is awarded one, one-and-a-half or two months’ salary per year of employment, depending on his age.
In calculating this formula, the courts can also take into account the labour market perspective of the dismissed employee and the financial situation of the employer. For more (hot-off-the-press) information, press here.
Whereas, in the past, you had to protest your imminent dismissal in court or else risk losing your right to the unemployment benefit, this is no longer the case.
As of October 1, 2006, even if you do not formally object to the fact that your employer is planning on firing you, you will still retain your right to the unemployment benefit, unless you are either fired for urgent cause or you yourself took the initiative to terminate the employment agreement.
Losing your job need not have consequences for the application of the 30% ruling in the future; if you find a new employer within three months and all other conditions for application of the ruling are satisfied, you will be able to apply for the ruling again and benefit from it for the remainder of the years during which it can be applicable.
This is the last part of the "Dutch employment law: Which rules apply to you?" article written by Stephanie Dijkstra, editor-in-chief of The XPat Journal. Have a look at the current issue or subscribe here.
Previous in the series
› Dutch employment law - Part 1
(Probation period, Chain contracts, Minimum / Maximum duration contract, Foreign temps, Multilingual jobs)
› Dutch Employment Law - Part 2
(Protection labour market, Salaries, Citizen service number, Terminating an employment contract)
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