Minervahuis 1 Rotterdam
By mr. Antoinette van Cappelle – Ijsseldijk van Cappelle Advocaten

We can't make it any more fun - yet can make it easier!

Using our daily employment and dismissal law practice, I have the following top three tips for employers.

1. Good filing is essential - pay attention to this!

An employee, who has already been clearly warned once (in writing) that certain behaviour will not be tolerated, is at some point simply finished. It is important to clearly state what you expect as an employer, and of course this should also be reasonable. If an employee does not meet these expectations, they should be held to account. This also gives the employee a chance to give his/her reaction to this - perhaps there was a misunderstanding or a good reason for his/her behaviour. This ‘hearsay’ and the employer's message: ‘no more of this, or dismissal’ is best put in writing, preferably the employee signs the letter for receipt.

Many employers and employees mistakenly believe that employees are ‘entitled’ to multiple warnings - this is not necessarily so but depends, among other things, on the severity and nature of the conduct alleged and any provisions in handbook and/or collective agreement.

2. Use well-worded employment contracts

We often see employment contracts in which all sorts of things have been cut and pasted. This can go well for a long time, but sooner or later it goes wrong.

Temporary contracts without an interim notice period, for example - these cannot be terminated mid-term, if things are very disappointing. The employer then has to sit out the whole ride, at least as far as salary payments are concerned. The employer can avoid this by including an interim notice period in the fixed-term contract. This notice option should apply to both the employer and the employee. Incidentally, actual termination still requires a dismissal permit from the UWV, which also takes time, but it is in any case strongly recommended to include such’s interim notice clause in the contract for serious setbacks.
Another example of ‘unfortunate, but unfortunate’ is a generally worded competition clause in a temporary contract. This is of no use to an employer, as the starting point is that a non-competition clause in a temporary contract is not valid. There is one exception, namely if the written justification, which must be included with the non-competition clause, shows that the clause is necessary because of serious business or service interests. This is a tough test and requires tailor-made wording specific to the employee in question.

3. Employee redundant? Submit part A of the dismissal application to the UWV in advance

If an employee's job becomes redundant (and there are no redeployment opportunities), the employer should apply for a dismissal permit from the UWV before being able to terminate the employment contract. Often, the employer comes to an arrangement with the employee with a termination agreement, agreeing on the termination of the employment contract. Then, proceedings at the UWV are no longer necessary. But it regularly happens that an employee calls in sick after being informed that he or she is redundant and is dismissed. This can lead to huge delays in the dismissal procedure, as a disabled employee enjoys dismissal protection. And an incapacitated employee will not usually want to enter into a settlement agreement either.
This delay can be avoided by submitting Part A of the dismissal request (which contains only a few general details and is therefore simple to draw up) to the UWV one day before notifying the employee. Any notice of illness by the employee, the day after the notice of dismissal is submitted and received by the UWV, will not lead to dismissal protection. It is our experience that, in that case, an employee will be less inclined to call in sick (strategically or otherwise) and more open to constructive consultations on a reasonable termination agreement. Ultimately, this is in the interest of both parties.

These are three important tips based on our daily practice. Of course, if you have any questions, feel free to give us a call - we will be happy to help.  

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