A couple of weeks ago, we wrote about a judgment in which an employee's request for dissolution of the employment contract was granted by the subdistrict court and fair compensation was awarded in addition to the transitional allowance, because the employer had acted seriously culpable. The judgment we are dealing with today also deals with such an employee's request, but in this case it is rejected because, according to the judge, there was no serious culpable conduct on the part of the employer.

What is this case about?

As indicated, the issue at stake is whether the employee's employment contract should be dissolved following her request to do so and whether the employer should be ordered to pay transitional allowance and fair compensation.

The main rule is that the Subdistrict Court can dissolve the employment contract at the request of the employee due to circumstances that are of such a nature that, in all fairness, the employment contract should end immediately or after a short period of time.

The employee took the position that she had become unfit for work as a result of the (seriously culpable) acts or omissions of the employer and for that reason took the view that the employment contract should be terminated and that the employer owed her fair compensation (among other things).

The Subdistrict Court considered as follows.

“Contrary to the employer's contention, the documents submitted by the company doctor show that the employee became unfit for work as a result of a high workload, the consequences of the corona crisis and an incident earlier at work (the death of a colleague in the workplace in December 2019). Nowhere does it show, however, that it was established that the incapacity for work was caused by employer's behaviour towards the employee and/or inadequate action against it by employer. The employer has disputed, with reasons, that there was culpable conduct, which led to the employee's incapacity for work. On the other hand, the employee did not (sufficiently) specify and substantiate what conduct of the employer had led to this, in her opinion. Moreover, the fact that the employee's illness arose because she experienced an unsafe situation at work for a long period of time is only first reflected in the documents in the employee's request of 6 May 2022 to amend the labour expert report. Partly in view of the fact that this dates from over two years after the employee reported sick and has otherwise not been confirmed in any way, this is insufficient.

Insofar as the employee offered to prove that the employer had (also) misbehaved towards other employees, the Subdistrict Court ignored this.

After all, even if this were to be established, it does not mean that the employee's incapacity for work is the result of any conduct on the part of the employer towards her. To that extent, the employee did not put forward sufficient evidence to be admitted as evidence. Moreover, in both the first and second year of illness of the employee, the company doctor always ruled that the objective was for the employee to return to her own position with the employer.

This was also always mentioned in the action plans that were drawn up. There is no evidence that the employee at any time objected to this or otherwise did not agree to it, so that also in that respect there are no indications that the employer is the cause of the employee's incapacity for work.”.

The Subdistrict Court further considered that the employee had not put forward any circumstances that were such as to justify the immediate termination of the employment contract. On the contrary. Furthermore, the Subdistrict Court emphasised that, in her request for dissolution, the employee even asked for the two-month notice period to be taken into account. According to the Subdistrict Court, this is contradictory to the nature and intention of the request for dissolution pursuant to Section 7:671c (1) of the Dutch Civil Code and, according to the Subdistrict Court, it seems to follow from this that, also according to the employee, there are no circumstances that make it so that the employment contract should end immediately or after a short period of time.

The conclusion is that the Subdistrict Court will not dissolve the employment contract. As a result, the employee's requests that the employer be ordered to pay transitional allowance, fair compensation, immaterial damages and unused holiday days, as well as a positive certificate, will also be rejected. Moreover, the employee will be ordered to pay the legal costs.

Read the full judgment here.

Would you like to know more about this judgment or about the possibilities of submitting a petition for dissolution of the employment contract on behalf of an employee? If you would like to know more about in which cases fair compensation and/or damages can be requested, please feel free to contact one of the employment lawyers at SPEE advocaten & mediation.