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Termination under the Work and Security Act (WWZ)

Under the previous employment law it was possible for an employer to have the employment contract with an employee terminated by the subdistrict court on the basis of a mix of reasons for dismissal. Often, on the basis of this mix, a damaged employment relationship was ultimately accepted, whereby the subdistrict court could take into account the degree of culpability in the compensation.

Under the WWZ, a mix of reasons for dismissal is no longer relevant. The employer must have a reasonable reason for dismissal. The reasons for dismissal are as follows:

- business and economic reasons;
- long-term incapacity for work (>24 months);
- frequent absenteeism with unacceptable consequences;
- dysfunction;
- culpable acts or omissions;
- refusal of work due to conscientious objection and adjustment not being possible;
- damaged working relationship;
- other circumstances that are such that continuation of work cannot be required.

The ‘business and economic' and ‘long-term incapacity for work’ reasons for dismissal may be submitted to the Employee Insurance Agency (UWV). The other reasons for dismissal can only be filed with the subdistrict court. The subdistrict court must then assess whether the reason for termination claimed by the employer is actually present. This also means that the subdistrict court may not allow for a termination for a reason other than that put forward by the employer. The fact that it is therefore very important to put forward the correct reason for dismissal is illustrated by a judgement of the subdistrict court in Overijssel.

In that case, the employer stated that the employment contract should be terminated because the employee violated all kinds of rules. The employee did not arrive on time, did not report sick in time according to the regulations, and violated verification requirements. The employer had already issued warnings on several occasions and had also suspended the employee's wages. However, the behaviour of the employee did not improve.

In the procedure, the employer stated that the employment relationship was damaged to such an extent that the employer could not reasonably be asked to allow the employment contract to continue.

The subdistrict court concluded in the proceedings that everything the employer had put forward, including interview reports and letters, showed that the employee was acting culpably or dysfunctionally by not appearing at work on time despite a multitude of warnings and was structurally not complying with verification and sickness absence rules.

However, the subdistrict court noted that the ‘culpable acts’ and ‘dysfunction’ reasons for dismissal had not been put forward by the employer in order to have the employment contract terminated. For this reason, the subdistrict court could not proceed to termination. The subdistrict court was of the opinion that the reason for dismissal put forward, a damaged employment relationship, was not present because the damaged relationship could not be considered serious and permanent.

Conclusion
This ruling shows that it is of great importance to clearly outline the reason or reasons an employer can invoke for dismissal and to substantiate these thoroughly prior to the dismissal procedure. In this way it can be prevented that there is a reason for dismissal, but that this dismissal is nevertheless not granted because the correct reasons were not mentioned.

Meulenkamp Advocaten's employment lawyers are happy to advise you in building up a file and requesting the termination of the employment contract.

For any questions or advice, please do not hesitate to contact Nancy Boijmans.

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