Many employers are occasionally confronted with an employee whom – in view of the seriousness of the conduct – they wish to part with immediately, i.e. dismiss summarily. But is this really possible? In this article, we will discuss the requirements for summary dismissal and three recent decisions by subdistrict courts that have ruled on summary dismissal.
Requirements of summary dismissal
Prior to discussing the rulings, we briefly name the requirements that a summary dismissal must meet. (1) An urgent reason must be present, (2) the employment contract must be terminated without delay, and (3) the urgent reason must be communicated without delay.
- Urgent reason is conduct that, according to the law, is such that the employer cannot be required to allow the employment contract to continue. The law mentions examples, such as theft, violence, deceit, neglect of duties and violation of reintegration obligations. Previous conduct of the employee may also contribute to the urgent reason.
- Immediate termination means that the employee’s employment contract must be terminated as soon as possible after the employer knows that he is authorized to dismiss. An employer has time to investigate and obtain legal advice.
- The urgent reason must be communicated to the employee as soon as possible so that the employee determine his or her status. We recommend always doing this (also) in writing. The burden of proof lies with the employer.
Verification of circumstances in the event of summary dismissal
In addition to these three requirements, the court also tests all the circumstances of the case, including: (a) the impact on the employee (age), (2) length of employment, (3) seriousness of the conduct, (4) frequency and knowability of the conduct, (5) job level, and (6) justifications.
Claims against employee for summary dismissal
A summary dismissal does not require that the employee be at fault. However, if the employee has given the employer an urgent reason for terminating the employment through intent or fault, the employee owes compensation. This compensation is equal to the salary for the notice period which the employee should have observed. In the case of a fixed-term employment contract without an interim notice clause, the compensation is, in principle, the salary for the remaining term of the employment contract. The subdistrict court may reduce the amount, but it may also increase it.
In addition to this fixed compensation, employers may also recover damages from the employee as a result of, for example, theft or embezzlement.
Case Law on summary dismissal
North Holland District Court 7 January 2021
In this case, an employee was summarily dismissed for work ethic, financial mismanagement and work refusal. The employer tried afterwards to withdraw the dismissal, but the employee did not agree. The employee claimed liquidated damages and equitable remuneration, as well as a declaration that the employer could not derive any rights from the non-competition clause.
According to the subdistrict court, the employer had not proven that there was a case of malfunctioning. There was no evidence of a serious discussion with the employee about his performance, nor was an improvement plan offered. Furthermore, not every refusal to work constitutes grounds for immediate dismissal. The employee refused to attend a performance appraisal interview after it was indicated that other people would be present than previously agreed. The summary dismissal was therefore not legally valid. The subdistrict court granted the employee’s requests and awarded €30,000 in fair compensation.
North Holland District Court 24 February 2021
Employee who worked for a transport company was summarily dismissed for allegedly assigning loads in exchange for personal benefits. Employee claimed liquidated damages, transitional compensation and equitable relief.
The subdistrict court ruled that the immediate dismissal was unjustified, since it was based in particular on an undated written statement in a foreign language which was so colored that it could not be regarded as credible. On this basis, the Subdistrict Court awarded fixed damages and transitional compensation. The sub-district court did not award equitable remuneration. It had been established that for years the employee had received payments from a third party (Spanish transport company), the employee had advanced money for fines to drivers and had granted a loan to the third party without informing the employer. This created the suspicion of fraudulent conduct. A request for dissolution would probably have been granted in view of these acts without the award of an equitable remuneration, according to the subdistrict court.
North Holland District Court 18 March 2021
In the latest case, an employee was summarily dismissed after taking and not returning a socket wrench set. During an interview in which the employer asked whether the employee had taken the set, the employee denied twice. When the employer showed a photo showing the employee with the set, the employee confirmed that he had taken the set. During that same conversation, the employee was summarily fired. Approximately one week after this dismissal, the employee indicated that he had no intention of taking the set. Approximately one month later, the employee indicated that he had not taken the set away, but had merely kept it.
The employee requested payment of the transitional allowance, fixed damages and equitable remuneration. It has been established that the dismissal was given without delay. It has also been established that the employee took the set with him and did not report this, nor was the set returned of its own accord. In view of the circumstances, the Subdistrict Court considered that there had been a serious breach of duty that justified immediate dismissal. The Subdistrict Court therefore did not award fixed damages and equitable relief. However, the Subdistrict Court did see reason to award partial transitional compensation of € 10,000, since the loss of the entire transitional compensation would be unacceptable according to the standards of reasonableness and fairness. The reason given was the 19-year employment relationship, the age of 55, the fact that the employee had not been at fault before and he had not yet found another job.
Probability of success for summary dismissal
The preceding judgments show that the success rate of a summary dismissal is small, but certainly not impossible. Always seek immediate advice regarding summary dismissal. We can review with you all the circumstances of the case and determine whether it is possible to give a summary dismissal or whether it would be better to opt for the dissolution procedure or an alternative solution.
Lawyers specialized in summary dismissal
Do you have any questions about this article? Please contact Peter Verheijden or Lisa Kloot of LVH Advocaten. As employment lawyers, they regularly deal with instant dismissals and will be happy to advise you on your options.
