7 March 2016
On 1 July 2015, dismissal law drastically changed.
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.
Since 1 July 2015, an extra judicial annulment is however not 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 a serious error as the dismissal will be confirmed.
Unfortunately, there has been a recent example of a case that ended very badly for the employee involved. The employee was instantly dismissed on 2 October 2015. The dismissal was immediately confirmed by the employer in writing. The employee objected to the dismissal immediately by text message. Subsequently, the lawyer of the employee claimed in summons proceedings (not by application proceedings therefore) by way of preliminary injunction (a type of urgent measure), reinstatement and continued payment of wages. Such a claim was very common under the old law.
The employee’s lawyer apparently realised on 4 December 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 convert the summons proceedings into application proceedings. These desperate attempts at rectification failed to help the employee. The Sub-district Court determined that, since 1 July 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 after this, the instant dismissal becomes irreversible.
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 3 December 2015. The request of 4 December 2015 to regard the summons for interlocutory 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. 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 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 as these measures must be claimed by summons (and not by application proceedings). The consequences? The interim relief was rejected as 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.
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. This term is an expiry period and can therefore not be interrupted (extended). If the application is not submitted within two months, the instant dismissal becomes irreversible. In that case, there is nothing you can do to object to the dismissal.
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