Working less than two months and receiving €64,000 gross in severance pay? It happened this month in a case handled by the Rotterdam Subdistrict Court. The employer, however, made quite a mess of things.

Facts

In December 2020, the employee and StatEmpire had consultations about a possible employment. Subsequently, on January 5, 2021, employee received an offer to join the company. She accepted that offer. On the same day, the employee resigned from her old employer (where she had a permanent contract) with immediate effect.

One day later, on January 6, 2021, the employee joined StatEmpire on the basis of an oral employment contract. On January 25 and February 25, 2021, employee received €4,250 on her bank account from StatEmpire, stating "salary January 2021" and "salary February 2021”.

On February 19, 2021, the employee received a WhatsApp from StatEmpire informing her that she would be given an employment contract, for two months with StatEmpire and from March 1 with Arazov Legal, a different company. On February 25, 2021, StatEmpire offered employee an employment contract for three months. The same day, the employer sent another WhatsApp message saying: "I emailed you regarding your employment relationship. I want a final answer tomorrow, or else I will appeal to your probationary period."

The employee subsequently indicated that she did not agree to this, because they had verbally agreed on an employment contract for an indefinite period. Employer responds, "Okay then we stop here. It's not going to be a permanent appointment. (...) Today was your last day of work."

That same day StatEmpire informs by e-mail: "On January 6 we agreed on an employment contract for an indefinite period of time at StatEmpire B.V. with a probationary period of two months. Today afternoon we decided to dissolve the employment contract, during the probationary period. There is therefore no longer an employment relationship as agreed on January 6 last, if and to the extent that you wish to enter into an employment contract again please respond to this notice."

On March 5, 2021, StatEmpire sent a signed employment contract for an indefinite period of time, with a two-month probationary period, to the employee's agent Under this employment contract, there are two signatures; one on behalf of StatEmpire and one on behalf of the employee.

Since employee disputes that she actually signed this employment contract, on March 11, 2021, she files a forgery report.

The employee also went to court: she applied for an equitable remuneration of € 145,932.87, fixed damages and a transitional allowance.

Judgment of the court

With regard to the probationary period, the Subdistrict Court considered that during the oral hearing StatEmpire stated that the employment contract did not reflect the agreements between the parties and that the probationary period had therefore not been fixed between the parties.

Thus, StatEmpire, in addition to the employee, also does not attach legal force to the employment contract. Therefore, it is established that the probationary period between the parties was not agreed upon in writing, so that there is a void probationary period clause. Hence,the employment contract could not be terminated. Because StatEmpire terminated the employment contract on February 25, 2021, this is in violation of Section 7:671 of the Dutch Civil Code.

The judge therefore ruled that the employee was entitled to equitable compensation. The Subdistrict Court considered that it could not judge how long the employment contract would have continued because both parties had failed to substantiate this sufficiently. Nevertheless, it is an established fact that as a result of the wrongful termination the employee was 'thrown out on the street' from one day to the next. StatEmpire has thus acted unlawfully.

The Subdistrict Court therefore ruled that the income loss of the employee in the period from the wrongful termination until the moment that she found a new job should be for the account of StatEmpire. In view of the employee's extensive CV and the fact that she has always worked for various consecutive employers, this creates reasonable expectations about her chances of finding a job. Therefore, the Subdistrict Court ruled that it was reasonable to expect that the employee would be able to find a new paid position within nine months. A compensation for the fact that the parties had agreed that the employee would be entitled to a car was rejected, because the employee had insufficiently substantiated that this was the case.
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The unemployment benefit and social security payments were deducted from the damages suffered by the employee, as were the transition pay and the fixed compensation. This led to a fair compensation of € 55,000 gross.

You can read the entire judgement here.

Do you also have questions about probationary periods, dismissal, the transitional compensation and/or fair compensation? SPEE advocaten & mediation has the necessary knowledge and experience in employment law.