Bospop is ruled against by the subdistrict court
In case an employer intends to dismiss an employee, an employer must not only have its personnel file in order, but also keep an eye out for any additional rules that may apply. Read the full article here:
What were the facts of the case?
The well-known music festival Bospop in Weert has a dispute with one of its employees, who is also part of the management team. The employee in question is also (indirectly) a director and sole shareholder of a private limited company (BV) with which Bospop has a barter/sponsorship agreement that has since been terminated. Bospop and the private limited company of the employee have a dispute over the domain name.
Bospop wants to terminate the employment contract with the employee on the grounds of a disrupted working relationship, alternatively on the basis of culpable behaviour and more alternatively a combination of both.
The internal regulations have been declared applicable in the employment contract. According to the employee, Bospop should not have submitted a request for dissolution because it did not act in accordance with Article 10 of those regulations. This provision reads as follows:
"Article 10.
- The management team:
(…)
- Management team members may be dismissed by unanimous decision of the board in a specially convened meeting, at which all board members are present;
- Management team members may also be dismissed by unanimous decision of the management team in a specially convened meeting, at which all management team members are present, except for the management team members to be dismissed;
- - Management team members can also be dismissed by a decision with an absolute majority of the board members and other management team members in a meeting specially convened for this purpose, in which all board members and management team members, except for the management team members to be dismissed, are present. (...)’.
.
In addition to the employee in question, the management team consists of three board members and seven other people.
How did the subdistrict court judge rule?
The subdistrict court did not even get to the grounds for dissolution that Bospop put forward because the rules in the internal regulations were not followed. None of the three ‘dismissal possibilities’ mentioned in Article 10 were applicable. Furthermore, Bospop's argument that the articles of association take precedence over the internal regulations was of no avail, as the subdistrict court judge could find nothing in the articles of association about the termination of the employment contracts of members of the management team.
You can read the full judgement here.
Conclusion
Both employers and employee must check carefully whether the employment contract or any internal regulations contain additional requirements for dismissal. This will help you to be well prepared. Do you have any questions about labour law? The team at SPEE advocaten & mediation will be happy to help you.