29 August 2022
Has an employee engaged in serious misconduct to such an extent that his/her employer no longer wishes to employ him/her?
Then the employer may terminate the employment contract with immediate effect for an urgent reason. Also popularly known as ‘dismissal with immediate effect’. In a recent case, an employee had threatened to kill his colleague, after which the employer had ‘conditionally’ dismissed him with immediate effect. The employer had given the employee the choice of entering into a termination agreement as an alternative to dismissal with immediate effect.
The employee worked as a floor manager at the company of the employer. At some point, he got into an argument with a colleague because the employee refused to do certain work. During this argument, the employee called his colleague names and threatened to kill the colleague, making the following statements: “I’m going to cut your throat”, “I’ll cut you to pieces” and “I’ll kill you if you don’t stop”. On the same day, the employee had a meeting with the employer and the following day he was dismissed with immediate effect and handed a dismissal letter. In the dismissal letter, the employee was given the option, as an alternative to dismissal with immediate effect, of entering into a termination agreement with the employer. The employee was given a period of several days within which to make his choice. The employee did not respond to this.
The court ruled that threatening a colleague qualified as an ‘urgent reason’. And that the dismissal of the employee was therefore justified. Threatening a colleague with death was deemed unacceptable by the subdistrict court and cannot be tolerated by the employer. In addition, the employee had previously threatened colleagues and been held accountable, and he was therefore forewarned. The subdistrict court court found that, although the employee had been employed for a long time (it is not clear from the ruling how long he had worked for the employer) and the consequences of a dismissal with immediate effect are serious, in this case this did not weigh heavily enough to reject the dismissal.
In addition, the dismissal had been given promptly and was thus on time. The dismissal letter and thus the reason for the dismissal were given to the employee one day after the incident. The fact that the dismissal had been given ‘conditionally’ did not change this. After all, the time for reflection was short enough, the dismissal with immediate effect would take place upon the expiry of the period and the employee was suspended from the moment he received the letter. Thus, the dismissal fulfilled the conditions.
If an employee has misbehaved to such an extent that you are considering a dismissal with immediate effect, it is therefore possible to give the employee a conditional notice of dismissal and make a proposal to terminate the employment contract by mutual consent. The advantage for the employee is that he/she may be able to safeguard his/her entitlement to unemployment benefits or a part thereof. In addition, a termination agreement reduces the risk of protracted legal proceedings regarding the validity of the dismissal with immediate effect. You should ensure that you immediately suspend the employee after the conditional dismissal notice and limit the time for reflection. It is wise to consult a lawyer if you are considering a conditional dismissal.
In the above-mentioned ruling, the employer was justified in dismissing the employee with immediate effect. However, this does not mean that every employee who threatens to kill his/her colleagues can justifiably be dismissed with immediate effect. Conditional dismissal with immediate effect is the most severe sanction that an employer can impose. It must therefore be the last resort. It should not be possible to wait for a ‘normal’ dismissal procedure. In addition, various important procedural rules must be observed.
The employer must have an urgent reason for a valid dismissal with immediate effect. The conduct or failure to act of the employee must be so serious that the employment relationship must end immediately. Moreover, the employee must be given the opportunity to give his/her version of events before you can proceed with a dismissal with immediate effect. The employee’s employment history and length of employment also play a role. Dismissal with immediate effect of an employee with a long and flawless employment history is less likely to be justifiable than an employee who has been warned several times and makes another misstep. Because dismissal with immediate effect has far-reaching consequences for an employee, his/her personal situation must also be considered. For example, if the employee is a breadwinner or a carer. Are you considering dismissing an employee with immediate effect? Please consult a lawyer first.
Do you have any questions? Please do not hesitate to contact me.
District Court of North Holland 20 January 2022, ECLI (abridged): 1451
This article appeared earlier in Rendement.
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