Employee termination: ‘We are going to quit’, clear and unambiguous?
It is more common than thought: an employee terminating their job in an emotional state. This termination may obviously be due to a conflict or discussion at work (e.g. about reintegration). It may also be that the employee feels pressured by his employer to quit.
Often, the employee only realises afterwards that he is then not entitled to WW benefits. The employee changes his mind and wants to go back on the termination.
Employee termination: clear and unambiguous
Any employee can terminate his employment contract. This can be done verbally or in writing. In a conversation, an employee makes a remark like “I’m not coming back here” or “I’m quitting”. This can therefore also be seen as a formal termination of the employment contract under circumstances.
However, there must be a clear and unambiguous statement by the employee, aimed at termination. This requirement does not apply to the employer in case it has given notice.
The employee is bound by the notice unless there is a lack of will, such as threat, fraud or abuse of circumstances. The employee must invoke this within two months. If he fails to do so, the termination is fixed.
The employer certainly has a duty to investigate in case of verbal or emotional termination. The extent of this duty to investigate depends on various circumstances.
We are going to quit is not a direct termination of employment contract
A good example of a termination that was not seen as clear and unambiguous is that of a head coach of FC Volendam. Here, the arbitration tribunal ruled that the media statement “We are quitting” did not constitute a clear and unambiguous termination will.
The Arbitration Committee (and also the North Holland District Court) considered – with reference to Supreme Court case law – that an employer may not quickly assume that an employee has given notice of termination given the far-reaching consequences of voluntary termination (no entitlement to benefits and transition compensation). Furthermore, the key issue is whether, given the circumstances, the other party was reasonably entitled to construe the statement as a termination. In the present situation, there was reason for the employer – if it believed there was a termination – to investigate whether the employee had intended a termination. After all, the statement was addressed to the media. The employer’s press secretary was only in the cc. Also, the content of the statement “We are going to quit” is not a direct termination. After all, this could also mean that the employee would quit at FC Volendam in the future.
Notice period and interim termination?
The employee must observe a notice period, except when terminating during the probationary period or for an urgent reason.
A fixed-term employment contract can only be terminated prematurely if this has been agreed in writing. The employee who terminates without a notice period is liable for damages over the non-observed notice period.
Termination during illness?
If an employee terminates while sick, this may constitute an act of prejudice towards the UWV. The employee is then not entitled to ZW.
Conclusion
- The employer should ensure that an employee understands that he may lose his right to ZW benefit, WW benefit and the transition allowance.
- Give a reflection period to the employee who terminates in an emotional state.
- Confirm the termination in writing. Address the circumstances of the case and state that you have made the employee aware of the consequences.
- If in doubt, seek legal advice immediately.
Want more information on employee termination? Contact Lisa Kloot or Richard Ouwerling. They are both employment law lawyers at LVH Advocaten in Rotterdam and regularly deal with the termination of employment contracts.
