Consequences of dismissing an employee
In practice, we regularly see employers get this wrong: summarily dismissing an employee. This form of dismissal is regarded as the ultimate remedy because of the far-reaching consequences it has for the employee. The dismissal takes effect immediately, meaning the employee stops receiving salary right away. In such cases, an employee also does not receive a transition payment and is not eligible for unemployment benefit (WW).
Conditions
Given these far-reaching consequences, a summary dismissal is only properly and validly given if three cumulative conditions are met. First, there must be an urgent cause. The law names a number of specific urgent causes, and it also follows that, if you as an employer want to proceed on this basis, the urgency must be capable of being established both objectively and subjectively. In addition, the urgent cause must be communicated to the employee without delay after it has become known to the employer. Finally, the summary dismissal must be given to the employee without delay, although as a rule the employer may take a few days for the necessary investigation into the urgent cause or to obtain legal advice.
The difficulty with these conditions is that you, as an employer, must act carefully and promptly. And that combination remains difficult for many employers. On top of that, the (verbally) communicated reason for the dismissal is fixed and determines the employer’s burden of proof. That means, in turn, that you cannot include more in the written confirmation than what you communicated verbally to the employee. And once given, it stays given. There is no legal possibility of withdrawing a summary dismissal.
Consequences for the employer of a wrongfully given summary dismissal
Giving a summary dismissal can prove costly for you as an employer if the employee subsequently challenges the dismissal before the court. The employee must, however, do so within 2 months of the dismissal. If the court rules that the summary dismissal was not validly given, it can restore the employment contract. As a result, the employer must readmit the employee to work and must pay, with retroactive effect, the salary the employee has missed out on (including statutory interest), with or without the award of certain payments. If the employee accepts the dismissal, then it is treated as a dismissal on the employer’s initiative, and the employer owes at least the transition payment. In addition, the employee can request compensation for the employer’s failure to observe the notice period. Finally, the employee may be awarded fair compensation. That is because a summary dismissal without an urgent cause will always lead to the finding that you, as an employer, have acted with serious culpability! And the amount of fair compensation can become quite substantial, because all the circumstances of the case are weighed in determining this compensation.
As an employer, always observe the conditions for a legally valid summary dismissal, and if in doubt, contact the corporate lawyers of The Legal Company via info@thelegalcompany.nl, call us on 020-345 0152, or get in touch via the button below.
The do’s and don’ts of summary dismissal
On 29 June 2023, The Legal Company is organising a masterclass, ‘Summary dismissal: the pitfalls and lessons‘. In this breakfast session, all the legal aspects of summary dismissal are discussed using practical examples, and we take you through legislation, case law and practical tips.
After this masterclass you will know what to look out for when giving a summary dismissal. And you will be up to date on the do’s and don’ts of this way of parting ways with employees.
Click here for more information and to register!
