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11 April 2019 

Disrupted employment relationship: when is dismissal possible?

A disrupted employment relationship is one of the 8 exhaustive grounds for dismissal for an employer to be able to terminate the employment contract with an employee. It is the ground for dismissal, which is included under g of Section 7:669 paragraph 3 of the Dutch Civil Code and is therefore also referred to as ground g for dismissal.

The other 7 exhaustive grounds for dismissal for an employer are:

Ground for dismissal a: Business economic reasons
Ground for dismissal b: Long-term incapacity for work due to illness
Dismissal ground c: Frequent absenteeism due to illness
Ground for dismissal d: Non-performance
Dismissal ground e: Culpable act or omission of the employee
Ground for dismissal f: Refusal of employment due to conscientious objection
Ground for dismissal h: Other circumstances

For the employment contract to be terminated on the basis of a disrupted employment relationship, there must be an actual disrupted employment relationship. There must also be a serious and lasting breach of the employment relationship. Finally, restoring the disrupted employment relationship should not be an option.

The employer will have to demonstrate that all these requirements have been met. It should be borne in mind that the judge may take all circumstances of the case into account when deciding whether the employment relationship has been disrupted to such an extent that dismissal is unavoidable. A disrupted employment relationship is a ground for dismissal that requires dissolution of the employment contract by the court.

It should also be borne in mind that it is required that there are no possibilities for redeployment. Finally, it is important to note that there may be full application of the termination prohibitions or reflex effect of the termination prohibitions.

Below I will first discuss the above requirements. Next, I will pay attention to the circumstance that the judge may take everything into account when deciding whether an employment relationship has been disrupted to such an extent that dismissal is unavoidable.

Then I will discuss the circumstance that there must be no possibilities for redeployment. I will also discuss a number of rulings in which the employment contract was dissolved despite the fact that there was a termination prohibition. Finally, I will address the question of whether – if the employment contract is terminated – the employee is entitled to a severance payment.

 

Actual disrupted employment relationship

The requirement of an actual disrupted employment relationship means that something must really be going on. There is no requirement for any degree of culpability on the part of the employee.

It may even be the case that the employer can be blamed for the disrupted employment relationship. That does not preclude the possibility of terminating the employment contract on the grounds of a disrupted employment relationship. This is evident from the Supreme Court’s judgment of February 2018 regarding Digihuis.

However, the Supreme Court has ruled that the extent to which a party is to blame for the disrupted employment relationship may be taken into account when assessing whether the employer can be required to continue the employment relationship. However, this is a circumstance which in itself need not be decisive.

This may be different if the disrupted employment relationship was deliberately caused by the employer and/or if the reproaches to be levelled at the employer are such that the employer can reasonably be required to continue the employment contract. In that case, the reproach that can be made against the employer could mean that dissolution of the employment contract is not an option.

In the latter judgment, the Supreme Court also ruled that facts and circumstances do not have to be undisputedly established. Making a plausible case is sufficient.

If there is no question of a disrupted employment relationship with the employer, but with another employee of the employer, for example a manager, and that employee leaves, there is no longer a question of an actual disrupted employment relationship, as evidenced by a judgment of the Arnhem-Leeuwarden Court of Appeal and a judgment of the subdistrict court in Tilburg.

Examples of an employment relationship that may or may not actually be disrupted

A judgment of the Subdistrict Court of Alkmaar shows that the employer cannot take advantage of a primary business discussion on the question whether the employee’s job has lapsed because of business economic reasons to have the employment contract dissolved because of a disrupted employment relationship.

The employer in question did try to do so. The UWV (Employee Insurance Agency) had ruled that there was no question of the employee’s job lapsing. The employer lodged an appeal against this with the Subdistrict Court and in those proceedings also requested the dissolution of the employment contract on the grounds of a disrupted employment relationship.

In doing so, the employer maintained that the employee did not wish to reconcile himself with the factual circumstance of the loss of the job and continued to oppose this. The court ruled that the employee is, of course, free to oppose an imminent dismissal on any ground whatsoever.

Moreover, the Subdistrict Court stated that it must be established that the employee rightly does not wish to reconcile himself with the proposition of the loss of the job and that the employee therefore has a good reason to continue opposing it.

A judgment of the Subdistrict Court of Rotterdam shows that the clandestine recording by the employee of conversations with the employer and other parties involved may lead to the opinion that the employment relationship is disrupted.

According to a judgment of the Subdistrict Court of Groningen, mutual irritation between the employee and his colleagues, including about going home too early and getting coffee too late, is insufficient.

A judgment of the Subdistrict Court in Bergen op Zoom referred to a love affair between the employer and the employee. That love relationship had ended in a turbulent manner, which had an effect on the relationship under employment law. That is why the Subdistrict Court considered dissolution due to a disrupted employment relationship.

Threatening the manager provided a ground for dissolution because of a disrupted employment relationship, according to a judgment of the Subdistrict Court in Amsterdam.

In a judgment of the Subdistrict Court of Arnhem, the employment relationship was not dissolved due to a disrupted employment relationship. The alleged disrupted employment relationship was based on the employer’s view that the employee was not performing well. The employee had not been sufficiently informed of this and no improvement procedure had been followed.

On the other hand, in a judgment of the Arnhem-Leeuwarden Court of Appeal, the employment relationship was dissolved because of a disrupted employment relationship, which was allegedly caused by malfunctioning, but not dysfunctioning. After all, no one would want to work with the employee anymore.

According to another judgment of the Arnhem-Leeuwarden Court of Appeal, the systematic failure to comply with the regulations for reporting sick results in dissolution due to a disrupted employment relationship.

According to a decision of the Subdistrict Court in Roermond, a hereditary refusal of work can result in a dissolution due to a disrupted employment relationship. According to a judgment of the Subdistrict Court of Den Bosch, repeated failure to perform a task from the range of duties may also result in dissolution due to a disrupted employment relationship.

Serous and permanently disrupted employment relationship

A disrupted employment relationship that lasts for many months or longer without any prospect of improvement can be described as permanently disrupted.

However, the requirement of a serious and lasting disrupted employment relationship does not always mean that the disruption must have lasted for a long time. The requirement of a permanently disrupted employment relationship looks to the future. It is about whether the employer and the employee could continue to work together.

Whether or not this is an option depends, among other things, on the seriousness of the disrupted employment relationship. The more serious the incident or incidents that caused the disrupted employment relationship, the sooner it will be assumed that there is a serious and lasting disrupted employment relationship.

If there is a recent incident between the employee and the employer that is so serious that it is not to be expected that the employment relationship can still be restored, there may also be a serious and permanently disturbed employment relationship.

The severely and permanently disrupted employment relationship will often relate to the relationship between the employee and his or her manager, but this is not necessarily the case. It is also possible, for example, that the employee is involved in several incidents with colleagues, as a result of which the employee’s position within the employer’s company has become untenable.

Restoring the disrupted employment relationship is not an option

In general, an attempt will have to be made as to whether the disrupted employment relationship can still be restored. For example through mediation. If no attempt has been made to try to restore the disrupted employment relationship, it should be taken into account that no end of the employment contract will follow. This was for example the case in a judgment of the Subdistrict Court in Rotterdam.

At the very least – according to another judgment of the Subdistrict Court of Rotterdam – constructive and real attempts will have to be made to investigate whether the disrupted employment relationship can still be restored. A judgment of the Court of Appeal of Den Bosch also shows that a serious attempt to restore the relationship is required. Mediation, in which the employer at no time sought to restore the employment relationship, does not meet this requirement.

However, an attempt to restore the disrupted employment relationship is not always required. That is, if the incident or incidents that caused the disrupted employment relationship are so serious that it can be concluded in advance that recovery is not an option.

In assessing whether restoration of the disturbed employment relationship is possible, not only the efforts of the employer are relevant, but also the attitude of the employee. If the latter shows no willingness to restore the relationship, then it will stop. This is evident from, among other things, a judgment of the Arnhem-Leeuwarden Court of Appeal.

Another factor that may play a role is that such serious accusations have been made on both sides and that too many people are involved on the employer’s side that restoration is not an option either. This is evident, for example, from a judgment of the subdistrict court in Amsterdam.

Is dismissal inevitable?

As explained above, the judge can take all circumstances of the case into account in his or her judgement whether dismissal is unavoidable. For example, it may consider whether or not to have a managerial position or otherwise have an exemplary function. In that case, certain conduct is less likely to be accepted and the employment relationship may be more likely to be disrupted.

The employer’s attitude, constructive or otherwise, and the employee’s attitude, constructive or otherwise, can also be considered. If the employer has an unconstructive attitude and, in the opinion of the court, has unnecessarily sharpened the relationship, this may result in the court not finding dismissal to be reasonable. A constructive attitude of the employee can have the same effect. This was for example the case in a judgment of the subdistrict court in Leeuwarden.

One circumstance that may also be taken into account is a positive opinion of the works council with regard to the proposed dismissal. In general, such an opinion will not be relevant, but in exceptional situations, such as the dismissal of a director, it may be relevant. This is evidenced, for example, by a decision of the subdistrict court in Utrecht.

In addition, an employee may be in the employer’s service for a long time, as evidenced by a decision of the Subdistrict Court in Den Bosch. Other factors that may be relevant are the employee’s track record, age and labour market position. That age is a factor that is important, as evidenced, for example, by a decision of the subdistrict court in Amsterdam.

On the employer’s side, this is not only the size of the company and the workforce, but also the seriousness of the consequences of the disrupted employment relationship for business operations.

Are there any redeployment options?

Even in the case of a disrupted employment relationship, termination of the employment contract can only follow if redeployment of the employee within the reasonable term of Article 10 of the Dismissal Regulation, with or without the help of training, to another suitable position is not possible or not reasonable. The position of the employee may, for example, mean that reinstatement is not reasonable. This was, for example, the case with a director, as evidenced by a decision of the subdistrict court in Utrecht.

It will also depend on the size of the organisation whether redeployment is an option. It goes without saying that large organisations are expected to do more in this respect than small organisations. This is evident from, among other things, Article 9 of the Dismissal Rules and a decision of the Subdistrict Court of Groningen. A judgment of the Court of Appeal of Den Bosch shows that redeployment will not quickly be an option if the enterprise is relatively small.

This is also relevant in the case of a disrupted employment relationship. If the disrupted employment relationship is between the employer and the employee, transfer will not be an option. If the disrupted employment relationship occurs on the shop floor, for example between the employee and his or her manager, transfer to another manager and/or branch may be an option.

A decision of the Court of Appeal of Arnhem-Leeuwarden and a decision of the Subdistrict Court of Tilburg, among others, have shown that this is the case.

Disrupted employment relationship and notice prohibitions

A number of notice prohibitions apply in full to dismissal grounds for employment relationships that are disrupted. This concerns the following termination prohibitions:

  • the termination prohibition due to membership of or work for a trade union;
  • the prohibition of termination due to political leave;
  • the prohibition of termination due to the employee taking leave;
  • the termination prohibition due to transfer of undertaking;
  • the prohibition of termination due to refusal of Sunday work;
  • the prohibition of termination on the grounds of discrimination.

The other termination prohibitions are reflex effect of the termination prohibitions. This concerns the following notice prohibitions:

  • the termination prohibition during illness;
  • the prohibition of termination during compulsory military service;
  • the termination prohibition during pregnancy;
  • the termination prohibitions due to involvement in participation;
  • the prohibition of termination due to involvement as an expert in the implementation of the Working Conditions Act;
  • the prohibition of termination by reason of involvement as an expert in the implementation of the Working Conditions Act;
  • the termination prohibition by reason of the data protection officer.

Reflexive effect of prohibitions of termination means that the court will examine whether the request for dissolution is related to circumstances to which the relevant prohibition of termination relates. If that is the case, the employment contract cannot be dissolved. If that is not the case, the prohibition of notice does not prevent termination of the employment contract.

One of the most common termination prohibitions is the prohibition of termination during illness. The termination prohibition during illness has – as shown above – a reflex effect in a procedure to terminate the employment contract due to a disrupted employment relationship. The court will therefore have to examine whether the request for dissolution is related to circumstances to which the prohibition of termination in question relates.

A judgment of the Court of Appeal of The Hague, for example, shows that an employee could be dismissed because of a disrupted employment relationship despite the fact that she was ill at that time and the disrupted employment relationship had only arisen after her illness.

The latter judgment referred to a situation in which the employer had not been able to enter into a constructive conversation with the employee for almost ten months after the employee had reported her sick. On several occasions, the employee had been offered a mediation procedure, but she set requirements for this to take place which did not arise from her medical limitations and, in the opinion of the Court of Appeal, could not be imposed on her.

Another example of a stubborn employee leading to the dissolution of the employment contract despite being ill can be found in a judgment of the Arnhem-Leeuwarden Court of Appeal.

In a judgment of the Rotterdam Subdistrict Court, the employment contract was dissolved due to a disrupted employment relationship and the termination prohibition on the grounds of illness was passed, because continuation of the employment contract would not benefit the employee’s health. The same happened, among other things, in a judgment of the Court of Appeal of Amsterdam.

Is the employee entitled to a severance payment?

As explained above, a disrupted employment relationship does not require any degree of culpability on the part of the employee. In general, the employee will therefore be entitled to the transition fee, unless there is a serious culpable act or omission on the part of the employee.

As explained above, it may even be the case that the employment contract is dissolved despite the fact that the employer can be blamed for the disrupted employment relationship. In that case, the employee may be entitled to a fair compensation in addition to the transition fee. This is when it is assumed that the dissolution of the employment contract is the result of serious culpable acts or omissions on the part of the employer.

Examples of fair compensation in the event of a disrupted employment relationship

Factors that may be important in determining whether or not to grant fair compensation are, for example, that the employee did not first receive a warning and was immediately suspended, as evidenced by a decision of the subdistrict court in Utrecht. The fact is that inactivity strongly creates the impression of instant dismissal and is therefore regularly regarded as unnecessarily damaging to the employee.

As also appears from the latter judgment, a suspension can contribute to the judgment that the dissolution of the employment contract follows. In the latter judgment, the time that has elapsed since the suspension was also mentioned as one of the factors that contributed to the fact that it is no longer reasonable to return to work.

Incidentally, the failure to give a warning and the immediate suspension of the employee does not necessarily mean that fair compensation is due, as evidenced by a decision of the Subdistrict Court of Maastricht, among other things.

In another judgment of the Subdistrict Court of Maastricht, however, fair compensation was awarded. As far as the amount of the fair compensation was concerned, one of the factors taken into account was how long the employee was expected to be unemployed and that the unemployment benefit – because of the maximum daily wage – was more than half as low as the salary the employee earned.

In a judgment of the Subdistrict Court in Rotterdam, fair compensation was also awarded. According to the Subdistrict Court, the employer had seized the opportunity of an incident, which in this case was not in itself worthy of dismissal, to bring about a termination of employment in any case. The Subdistrict Court considered this to be seriously imputable to the employer. In determining the amount of the fair compensation, the Subdistrict Court took into account, on the one hand, an estimated duration of unemployment based on age, education and experience and, on the other hand, the fact that the employee received compensation in excess of the statutory entitlement.

In a judgment of the Court of Appeal of Arnhem-Leeuwarden, an ill, mentally vulnerable employee was granted a fair compensation as she was against her will during her illness harassed with proposals to terminate the employment relationship.

In another judgment of the Arnhem-Leeuwarden Court of Appeal, the amount of the fair compensation took into account, among other things, that the employee was not entitled to a transition fee because of his short employment.

A judgment of the Subdistrict Court of Maastricht showed that, according to the Subdistrict Court of Maastricht, the equitable remuneration breaks down into three components. First of all, the degree of culpability of the serious acts or omissions of the employer. In addition, the consequences of the end of the employment contract for the employee and, finally, damages.

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About the author
Ilma van Aalst started working as a Dutch employment law attorney at the beginning of 2000 and thus works as a Dutch employment law attorney for more than 19 years now. Ilma first worked as a Dutch employment law attorney for more than ten years at Poelmann van den Broek in Nijmegen and Eversheds Sutherland in Rotterdam. In 2010, Ilma started 7 Laws of Persuasion. Since 2007, Ilma has been a member of the Dutch Employment Attorneys Association (Vereniging Arbeidsrecht Advocaten Nederland, VAAN), the association that received the quality mark logo for employment law specialists from the Dutch Bar Association. Since the beginning of 2016, she has been an intervision moderator recognised by the VAAN. She is also a member of the Rotterdam Employment Attorneys Association. In addition to her work as a Dutch employment law attorney, Ilma has also been working as a Dutch employment law lecturer since 2008.
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