29 April 2019
From 2020, civil servants in the Netherlands will be entitled to a transition allowance on dismissal, just like ordinary employees.
This is due to the Standardisation of Legal Status of Civil Servants Act (Wnra). It is possible that the civil servant will therefore benefit from both a transition allowance and the retention of extra-legal unemployment benefits.
As a result of the “big bang” of normalisation, which will come into effect on 1 January 2020, civil servants will receive an employment contract instead of official appointments. But what about all their years of previous civil service? Will that count towards the transitional compensation? And what happens if a civil servant moves to work in business? Here is an overview, based on a decision by the sub district Court of Maastricht on 20 September 2018.
A woman had been employed as an official at Streekgewest Oostelijk Zuid-Limburg since 1981. This official appointment came to an end in 1999 when its activities were taken over by a private organization called SBT. At this time, she was given an employment contract with SBT. In 2018, after a lost UWV dismissal procedure, SBT requested the dissolution of the employment contract for business reasons. The sub district court dissolved the contract and allocated a transition fee. That fee was calculated based only on the years 1999 – 2018.
According to the sub district court, the civil service years before 1999 do not count towards the transition allowance because there was a transfer of undertaking in 1999. That reasoning is correct; until 2020, if a company is transferred from a governmental organisation to a private organisation, then the rights and obligations accrued will not be transferred.
From 2020 onward this will be simpler: if privatisation or deprivatisation qualifies as a transfer of undertaking, then the employee will transfer to the private organisation while retaining all rights and obligations. The same will apply to an ordinary employee who enters government employer service.
The sub district court judge continued with the same line of reasoning, ruling that insofar as there is successive employment with SBT and no transfer of undertaking, the years of service as a civil servant also do not count (Section 7: 673 paragraph 4 Dutch Civil Code).
Some judges think otherwise. Under the Wwz, in a judgment of 1 November 2016, the Court of Appeal in The Hague ruled that all civil service years were counted in the calculation of the transition compensation after dismissal from a subsequent private employer.
Even before the Wwz, other cantonal judges included all previous years of service as a civil servant in the event of termination of the employment contract and in the question of the chain of employment contracts.
It could therefore have ended differently for this Limburg civil servant and her current private employer. Her transitional compensation has now been set at around € 25,000 gross. If the period had been included from 1981 onwards, the transition payment would have been approximately € 45,000 gross.
After 2020, this question should become clearer. From 1 January 2020, a civil servant will automatically be given an employment contract and, according to the law, they will retain all rights previously accrued and agreed as civil servants. In my opinion, seniority also falls under this, so all official years of service should then count towards the transition allowance – also in the case of successive employment. This is good to take into account for both officials and also (government) employers.
If you have a question about this subject, please feel free to contact me.
Court of The Hague: https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:EN:GHDHA:2016:3264
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