Whether something is perceived as an (employment) conflict differs from person to person. What one person calls a spirited discussion, another may perceive as a quarrel.

The STECR work guide uses the following definition of employment conflict:

"Two individuals, an individual and a group or two groups, within the boundaries of a labour organisation, have a labour conflict if at least one of the parties feels that the other party thwarts or annoys it. This may relate to labour content, labour relations, working conditions or terms and conditions of employment."

In short, in an employment relationship, one person may believe there is an employment conflict, while the other party may not necessarily see it that way.

Since the introduction of the Work and Security Act, an employer can terminate an employment contract if there is a disrupted working relationship, to the extent that the employer cannot reasonably be required to let the employment contract continue (Section 7:669(3)(g) of the Civil Code; also called "the g-ground").

It follows that an employer must make an effort to make the employment relationship work. The employer must continue to engage and remain in dialogue with the employee, whether in the form of mediation or otherwise. The employer should not move too quickly towards termination of the employment contract (including in mediation).

An employer must also take timely action to resolve problems with employees or between employees. Where necessary, the employer should use mediation. An employer will also have to consider whether reinstatement is still possible.

Mediation is thus an important tool for employers and employees to reach a solution to an employment conflict. In mediation, both the conditions under which the employment contract is maintained and a termination of the employment relationship can be discussed.

If mediation is proposed by one of the parties, there seems to be an implicit obligation to agree to it. If there are reasons not to do so, it is advisable for that party to motivate the rejection, but also to accompany it with one or more alternatives. Indeed, refusing mediation may have consequences for that party's legal position. For instance, if the employee refuses mediation or imposes unnecessary conditions on mediation, this may affect his/her right to continued salary payment.

But an employee may refuse to cooperate in mediation if the employer indicates in advance that the mediation will only concern the termination of the employment contract.

Incidentally, there are conceivable exceptional cases where trust has been damaged to such an extent that mediation cannot provide a solution in advance, and an employer therefore does not have to use mediation. For instance, the Leeuwarden subdistrict court (Rb. Noord-Nederland 16 March 2016, ECLI:NL:RBNNE:2016:1126) ruled: "Since there has been a well-founded breach of trust, caused by a serious breach of the integrity standard by the employee, in the subdistrict court's opinion this also implies that the employer was right to reject the employee's proposal to enter into a mediation process. The breach of trust is so serious that it was rightly deemed irreparable by employer."

If mediation has been attempted, this does not necessarily lead to the granting of the dissolution request. The fact that mediation took place but did not lead to a solution does not make the g-ground, the disrupted working relationship, a fact.

However, the question of whether mediation was attempted does play an (important) role in the question of whether there is a disturbed working relationship. Who caused the conflict and whether sufficient efforts were made to restore the relationship are also relevant. If the employer is not to blame, in many cases the request for dissolution would seem to be granted. If the employer can be blamed, this will lead to a rejection of the dissolution request, or - in addition to the transitional compensation - a fair compensation will be awarded to the employee.

In short:

It makes sense for the employer and employee to cooperate in mediation;

Do not set conditions to mediation unless there are good reasons for doing so or a good alternative is proposed to reach a solution;

Setting conditions is also not necessary, as these conditions, even in mediation, can be raised as clear interests and, if necessary with priority, become the subject of the negotiations that are part of a mediation.

Do you have any questions about this? If so, please feel free to contact one of our employment lawyers. As employment lawyers we are delighted to offer you support and advice!