A recent Supreme Court ruling has opened up the possibility for a partial dismissal at the employee’s initiative. Although the statutory dismissal procedure does not allow a partial dismissal by the employer, the Supreme Court now hands tools to the employee to accomplish this. If confronted with an employer filing a termination request with the court, the employee can make a reasonable counter-proposal, by way of statement of defence or counter-request containing a reduction of working hours, for example. Under certain circumstances, the employer must now accept this counter-proposal, resulting in a partial dismissal.
The ruling creates more flexibility in Dutch dismissal law and is arguably a forerunner of upcoming legislative amendments, aimed at easing rules on dismissal (as proposed by the Committee on Regulation of Work at the end of January 2020).
Current regulations do not provide for the partial termination of an employment agreement. In this ground-breaking case, the Supreme Court acknowledged that creating such a possibility would be beyond its law-making role. It explicitly referred, in this context, to the Committee on Regulation of Work which advises the government on employment law revisions. One of the Committee’s recommendations was to introduce the possibility to partially terminate an employment agreement, or to have employees work on different locations or on different tasks.
However, the Supreme Court did list several ways in which the parties could accomplish a partial termination of the employment agreement. Specifically, it highlighted the situation where an employer can be compelled to accept a proposed amendment to the employment agreement which results in partial termination, following the general rule of “acting as a good employer” (article 7:611 DCC).
An employee can make such a proposal during dissolution proceedings, as a statement of defence or as a counter-request. As a result of this amendment proposal, it is possible that the employer no longer has a reasonable ground for termination. This is the case if the court rules that: (i) the dissolution request can be granted, (ii) the employer, however, is obliged to accept the amendment proposal pursuant to the general rule of “acting as a good employer”, and (iii) agreeing to the proposal would result in such an amendment of the employment agreement that the employer’s reasonable ground for termination no longer exists. If these conditions are met, the dissolution request would be denied.
If the employer agrees to the amendment of the employment agreement, or the court grants the employee’s amendment proposal based on ‘acting as a good employer’, the employee can be entitled to a partial transition payment as a result of the partial termination.
Stefan Sagel, who litigated this case before the Supreme Court on behalf of the employee, has described this ruling as “a revolutionary development.” Employees facing a termination request from their employer now have more possibilities to prevent the complete termination of their employment agreement.
Going forward, employers seeking termination through a sub-district court may have to agree with an employee’s amendment proposal, such as a reduction of working hours.
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