As of 1 July 2015, the Dutch Work and Security Act (Wet Werk en Zekerheid – WWZ) stipulates that, in the event of (involuntary) termination of his employment agreement, in principle, the employer owes the employee a transition compensation. In such case, the employment agreement must have lasted at least two years. The transition compensation is intended to compensate for the dismissal and ease the employee’s transition to another job. In extraordinary circumstances, the employee is entitled to a reasonable compensation in addition to the transition compensation. This is the case in the event of – for example – serious imputable acts or omissions on the part of the employer.
Transition compensation v. reasonable compensation
In calculating the transition compensation, the extent of the culpability of the employer is not taken into account. In addition, the level of the transition compensation does not depend on the reason for the termination of the employment agreement. This is different for the reasonable compensation. In calculating the reasonable compensation, the extent of the culpability of the employer is taken into account. The option of granting a reasonable compensation prevents the employer from being able to get away with committing imputable acts against the employee.
Level of the reasonable compensation
A claim for payment of a reasonable compensation must be submitted to the subdistrict court. Since the introduction of the reasonable compensation, many employees have claimed such a compensation. In determining the level of the reasonable compensation, the subdistrict court takes account of the seriousness and the culpability of the employer’s acts, but is not bound by a certain formula. It has, however, become clear that the salary and the length of the employment are not taken into account. In addition, the subdistrict court can take account of the employer’s financial situation.
So far, subdistrict courts have exercised restraint in granting the reasonable compensation. However, there have been a number of decisions in which the subdistrict court did grant a reasonable compensation. On 15 October 2015, a subdistrict court granted a reasonable compensation in connection with serious imputable acts on the part of the employer.
Subdistrict court of Amersfoort
In the relevant case, the employer terminated the employment agreement with the employee without observing the notice period and without the written consent of the employee. The employee submitted a claim for reasonable compensation.
The subdistrict court found that the employer terminated the employment agreement with the employee without her written consent. There had been no circumstances on the basis of which the employer was not required to ask the employee’s consent. According to the subdistrict court, legislative history shows that acts in violation of the applicable regulations constitute a serious imputable act. In the relevant case, the employer acted in violation of the statutory regulations, which meant that the employee was entitled to a reasonable compensation.
Conclusion
Only in extraordinary circumstances will the subdistrict court grant a reasonable compensation in addition to a transition compensation. This is the case in the event of – for example – serious imputable acts or omissions on the part of the employer. So far, there have been only a small number of decisions in which a reasonable compensation was granted. The above decision shows that termination of the employment agreement without the written consent of the employee constitutes a serious imputable act on the part of the employer, on the basis of which a reasonable compensation is owed.
Further information
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