Instant dismissal is a drastic measure, both for the employee and the employer. It is important to know when summary dismissal is allowed and what conditions it must meet. This blog explains what summary dismissal entails, the situations that can give rise to summary dismissal, and the rights and obligations of both employer and employee in this process.
1. What is summary dismissal?
Instant dismissal is a form of dismissal in which the employment contract is terminated immediately. Thus, without notice and also without the right to severance pay. This type of dismissal can only be given if there is an urgent reason justifying the immediate termination of the employment contract. Instant dismissal has far-reaching consequences for the employee, such as loss of income and the probable loss of entitlement to unemployment benefits.
2. When is summary dismissal allowed?
Instant dismissal is only allowed if there is an urgent reason. The law (Article 7:678 BW) lists a number of situations that can be considered urgent reasons, such as:
- Theft, embezzlement, fraud or other crimes by the employee;
- Gross dereliction of duty, such as repeated tardiness or work refusal;
- Serious incompetence or unfitness for the position performed;
- Gross insult or threat to employer, colleagues or customers;
- Serious violation of company rules, such as violating confidentiality or Security regulations;
- Drunkenness or other misconduct at work that seriously interferes with the employee's performance.
This is not an exhaustive list. Other situations may also be considered urgent reasons, always depending on the specific circumstances.
3. Conditions for summary dismissal
In order for a summary dismissal to be legally valid, the employer must meet a number of conditions:
- The urgent reason must be communicated to the employee immediately, or without delay.
- The dismissal must be given immediately after the finding of the urgent reason.
- The employer must be able to prove that an urgent reason actually existed.
4. Rights and obligations of the employee
When an employee is summarily dismissed, it is important to know his or her rights and obligations:
- The right to be informed of the urgent reason. For a summary dismissal to be valid, the employer must immediately and clearly inform the employee of the reason for the summary dismissal.
- The right to object to the dismissal. The employee has the right to object to the dismissal. This can be done initially with the employer, or directly by filing a petition with the subdistrict court. In this petition, the employee can ask for the dismissal to be reversed, receive severance pay (fair compensation) or temporary relief.
- The right to legal advice and assistance. The employee has the right to seek legal advice and receive assistance in challenging the dismissal. This can be done, for example, by engaging a lawyer or legal counsel.
- Duty to actively seek other employment. Although the employee may not be entitled to WW benefits after summary dismissal, it is still important to actively look for other work and register with the UWV as a job seeker.
5. Tips for employers on summary dismissal
It is important for employers to handle summary dismissal with care, as this type of dismissal often leads to legal proceedings. Here are some tips to consider:
- Provide a clear and documented reason: For summary dismissal to be successful, the employer must be able to prove that there is an urgent reason. Make sure the reason is well documented and, if possible, evidence is available.
- Be careful about timing: The summary dismissal must be given promptly, which means there should be no undue delay between the time the urgent reason becomes known and the time of dismissal. This can sometimes be a challenge, especially if an internal investigation is needed to establish the facts.
- Consider alternatives to summary dismissal: In some cases, it may be wiser to opt for a less drastic form of dismissal, such as a dissolution of the employment contract by the subdistrict court or offering a settlement agreement. This can reduce the likelihood of legal proceedings and give the employer more room to find an appropriate solution.
In conclusion
Instant dismissal is an extremely drastic measure and should only be given if there is an urgent reason for dismissal. It is essential that both employers and employees are aware of the conditions and consequences of summary dismissal. Employers must act carefully and be aware of the legal risks associated with summary dismissal. Employees should know their rights and obligations and, if necessary, seek legal advice to protect their interests. By acting carefully and transparently, both employers and employees can protect their interests and minimize potential legal conflicts.
This blog was written by Mr. Stijn Blom, employment lawyer at Arbeidsadvocaat.nl B.V. Stijn has extensive experience in employment law and assists entrepreneurs daily with a wide range of employment-related matters. From dismissal cases to drafting watertight contracts and policies – with his practical and personal approach, he helps employers and employees move forward. Want to know more?Visit Stijn's page.
If you have questions about this topic, contact Arbeidsadvocaat.nl.
May 2023
