22 Nov 2022 Employee requests dissolution of employment contract and receives transitional allowance and fair compensation for serious misconduct by employer
This case involved an employee's petition for dissolution of the employment contract, which was granted by the Subdistrict Court. The employee also requested an award of transitional allowance as well as fair compensation, because, in his opinion, the dissolution of the employment contract was the result of seriously culpable acts (or omissions) by the employer. The Subdistrict Court granted both requests.
What are these proceedings about?
As indicated, the issue in this case is whether the employee's employment contract should be dissolved upon his request 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 employee's request due to circumstances of such a nature that, in all fairness, the employment contract should end immediately or after a short period of time.
The first question to be answered in this case is whether an employment contract still exists between employer and employee. Indeed, the employer takes the position that it is no longer an employer because it has transferred its business.
The premise is that a transfer of undertaking within the meaning of Section 7:662 of the Dutch Civil Code must be based on an agreement, merger or demerger, and that the transfer must concern an economic unit, the identity of which continues to exist. In the opinion of the Subdistrict Court, this requirement has not been met.
Having established that an employment contract still exists between employee and employer, the Subdistrict Court answers the question whether the employment contract should be dissolved.
The employee argued that the employment contract should be dissolved for an urgent reason. In his opinion, in the past period there has been erosion of his position and harassment. Furthermore, employer has informed that the company has been taken over, but according to employee, employer is lying about this. A continuation of the employment, according to employee, will therefore lead to a worsening of his illness and/or hinder his recovery.
The Subdistrict Court decided to grant the employee's request, because the employer did not oppose dissolution of the employment contract and because an employee's request should be honoured in itself in view of the right to free choice of employment. The Subdistrict Court therefore dissolved the employment contract with effect from 1 December 2022.
With regard to the employee's request for transitional allowance and fair compensation, the Subdistrict Court considered the following.
In the opinion of the Subdistrict Court, the termination of the employment contract in this case was the result of seriously culpable acts or omissions on the part of the employer. This is because the employer has persisted in its assertion that there was a transfer of its business, while there is no indication whatsoever of this and it even contradicts the documents. The employer has also failed to comply with repeated requests from the employee to produce documents that should prove the alleged transfer of undertaking. Moreover, to the extent that there was a transfer of undertaking, the failure to comply with the obligation to provide information is unlawful and clearly constitutes serious culpable acts or omissions by the employer. In doing so, the employer neglected its obligations as a good employer by keeping the employee in the dark for a long time.
The Subdistrict Court therefore awarded the employee transitional allowance in the amount of €14,533.17 and fair compensation in the amount of €25,000. Both are gross amounts.
Read the full judgment here.
Would you like to know more about this ruling 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 the cases in which fair compensation can be requested, please feel free to contact one of the employment lawyers at SPEE advocaten & mediation.