How to get a wrongful dismissal annulled in the Netherlands
The Legal Expat Desk (LED) is an information hub by GMW advocaten, advising the expat community in the Netherlands since 2006. LED regularly publishes articles covering a wide spectrum of legal topics.
On July 1, 2015, dismissal law changed significantly in the Netherlands. Before that time, you could, as an employee, annul a wrongful instant dismissal by means of a written notification addressed to the employer within six months.
Subsequently, continued payment of wages and reinstatement (being able to carry out work) was often claimed by way of a summons. After July 1, 2015, an extrajudicial annulment is no longer sufficient and you have less time to obtain the annulment.
If you do not agree with the instant dismissal, you must request the court to annul the termination within two months. This does not happen by summons but by application proceedings. If you are too late, or submit an incorrect claim, this will be considered a serious error and the dismissal will be confirmed by the court.
Instant dismissal in the Netherlands
Last year there was a case of instant dismissal that did not end the way the employee had wanted (because they were not aware of the new law). The employee had been instantly dismissed on October 2, 2015, which was immediately confirmed by the employer in writing.
The employee objected to the dismissal immediately by text message. The lawyer of the employee then claimed reinstatement and continued payment of wages. He did this in summons proceedings (and therefore not by application proceedings) by way of preliminary injunction, a type of urgent measure. Such a claim was very common under the old law.
Pay attention to the right proceedings and claim
The employee’s lawyer apparently realised on December 4, 2015 that all was not going as it should. He requested the court to treat the case as an application for the annulment of the termination and/or to convert the summons proceedings into application proceedings.
These desperate attempts at rectification failed to help the employee. The Sub-district Court determined that, after July 1, 2015, a wrongful dismissal may only be annulled by the court.
The application for annulment of the termination must, according to the law, be submitted by the employee to the court within two months after dismissal. If the application is submitted later than this, the instant dismissal becomes irreversible.
Apply for annulment on time
According to the court, the documents did not show that an application for annulment of the dismissal had been submitted on time. The term of two months had already passed on December 3, 2015.
The request of December 4, 2015 to regard the summons for interim proceedings as a timely submitted application for annulment of the dismissal, as well as the request to "change track" (from summons proceedings to application proceedings) could not be granted.
Summons or application proceedings?
According to the court, the summons did show that the employee intended to annul the instant dismissal but that a claim to that end was absent in the summons despite such a claim being required.
The measures which had been claimed (reinstatement and continued payment of wages) did not give rise to the order to change track, because these measures must be claimed by summons (and not by application proceedings).
The result was that interim relief was rejected because the court deemed it plausible that the court in the main action would have upheld the instant dismissal on the basis of the failure (or late) submission of an application for annulment.
Be thorough and on time with your appeal
If you disagree with the instant dismissal, you must submit an application to the court within two months after the dismissal. In this application, you request the court to annul the dismissal.
The two-month limit is an expiry period and can therefore not be interrupted or extended. If the application is not submitted within the two months, the instant dismissal becomes irreversible. In that case, there is nothing you can do to object to the dismissal.