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18 May 2021 Getting back to work as a self-employed worker for the same company after instant dismissal

Employer owes equitable remuneration

This week we discuss a ruling about an employee who has been summarily dismissed, but who is then immediately hired as a self-employed worker to do the same job for his former employer. This raises the question: is there an urgent reason for the immediate dismissal?

Facts
The employee started working for the employer (a cleaning company) on 1 February 2019 as an employee for cleaning maintenance floor I. From 20 May 2020 the employee had a contract for an indefinite period. This was a min-max contract for a minimum of 8 hours per four weeks. On 28 December 2020, the employee was summarily dismissed by the managing director of the cleaning company, because the employee had allegedly turned up late for work despite warnings, because he had used the company bus privately and because of the theft at work of copper.

During the discussion of these issues, the cleaning company discussed the fact that it wanted to hire the employee as a self-employed person as of 1 January 2021 for the work that he was already doing on the basis of his employment contract. Employee agreed to this. On 18, 21 and 29 January 2021 and 1 and 18 February 2021, the employee worked for his former employer as a freelancer in the position of workplace cleaner.

However, in a letter dated 22 February 2021, the employee's representative informed the employer that the employee did not agree with the instant dismissal. The employer did not wish to reconsider the dismissal. Although the employee agreed with the dismissal, he did claim the transitional allowance, an equitable remuneration and the allowance for wrongful termination of the employment relationship.

Instant dismissal not legally valid
The court ruled that it was an established fact that, following his dismissal, the employee had been hired by his former employer as a self-employed worker to carry out the activities he had performed as an employee until his dismissal. In the opinion of the subdistrict court, it must be deduced from this that the reasons that the employer put forward for the dismissal of the employee (subjectively viewed) were not so urgent as to justify the immediate dismissal. For this reason, the instant dismissal was not legally valid. As the dismissal was not legally valid, the employee, who had agreed to his dismissal, was entitled to claim from the employer the transitional compensation and damages referred to in Article 7:672 (11) of the Dutch Civil Code.

Fair compensation
It is sufficiently plausible that employee was significantly late for work in 2020. It is plausible, as stated by the employer and not sufficiently disputed by the employee, that arriving late at work was stressful for (among others) the employee's colleagues. It is therefore plausible that, if the employer had not summarily dismissed the employee on 28 December 2020, the employer would have applied to the subdistrict court to dissolve the employment contract on (inter alia) this ground and, furthermore, that this application would have been granted on this ground, such that the employment contract between the parties would have been terminated with effect from 1 May 2021.

In this respect, it was taken into account that, in view of the many warnings the employee had received from the employer in 2020, a prior performance improvement process would not have been necessary. In light of the employee's average monthly salary of €1,818.02 including all benefits, in the period from September to November 2020 inclusive, the fair compensation should therefore be set at a rounded sum of €7,500, from which the transitional allowance of €1,264.59 and the amount of €487.40 earned by the employee as a self-employed worker for the employer should be deducted. The fair compensation therefore amounts to € 5,750 gross.

You can read the entire judgement here.

Do you also have questions about instant dismissal, transitional compensation or fair compensation? SPEE advocaten & mediation has the expertise.

SPEE advocaten & mediation Maastricht

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