Both employees and employers can come into contact with dismissal in various ways. Do you choose it yourself or not? And under what circumstances? One of the most drastic ways is immediate dismissal. Is that the case? Then the employment contract between the employee and the employer will end instantly. Within the employment relationship, this option accrues to both the employer and the employee. However, the decision regarding this kind of dismissal cannot be taken overnight by either party. In both cases, certain conditions apply for a valid dismissal and the parties have certain rights and obligations.
For a valid immediate dismissal, both the employer and the employee must meet the following legal requirements.
- Urgent reason. The circumstances must be such that one of the parties is forced to dismiss it. This must concern acts, characteristics or conduct of one of the parties, as a result of which the other party cannot reasonably be expected to continue the employment contract. More specifically, it may be threat, deception or serious danger to life or health in the workplace. Another reason may be the lack of adequate provision of room and board by the employer, even though this has been agreed.
- Faateʻa loa. If the employer or the employee subsequently proceeds to dismissal with immediate effect, such dismissal must be given or taken immediately, i.e. immediately after the incident or culpable act in question. In addition, the parties are permitted to take a short time before proceeding to such a dismissal, for example to obtain legal advice or to initiate an investigation. If one of the parties waits too long, this requirement can no longer be met.
- Immediate notification. In addition, the urgent reason must be communicated to the other party in question without delay, i.e. immediately upon immediate dismissal.
If these requirements are not met, the dismissal is voidable. Are all three of the above conditions met? Then the employment contract between the parties ends with immediate effect. For such a dismissal, permission does not have to be requested from the UWV or the subdistrict court and no notice period has to be observed. As a result, the parties do have certain rights and obligations. Which rights or obligations these are, is discussed below.
If the employee is the person who decides to dismiss with immediate effect, for example due to serious culpable acts or omissions on the part of the employer, the employee who has been employed for at least 2 years is entitled to a transition payment. Will the employer proceed to dismissal with immediate effect? In that case, the employee is in principle not entitled to a transition payment if the dismissal is the result of seriously culpable acts or omissions on the part of the employee. The subdistrict court can exceptionally determine otherwise. In that case, the employer may still have to pay (partially) the transition fee to the employee. Would you like to know more about the conditions for or the calculation of a transition fee? Then contact the lawyers of Law & More.
Compensation for urgent reason due to intent or fault
If the employee immediately resigns for an urgent reason due to intent or fault on the part of the employer, the employer will owe compensation to the employee concerned. This compensation depends on the employee’s wages and must be at least equal to the amount that the employee would have received in wages over the statutory notice period. The subdistrict court can also reduce or increase this compensation in fairness. Conversely, the employee must also pay a comparable compensation to his employer as a result of his intent or fault and the subdistrict court can also adjust the amount of this compensation.
You disagree with the dismissal
As an employer, do you disagree with the immediate dismissal taken by your employee? In that case, within 2 months of the day on which the employment contract with your employee was terminated due to immediate dismissal, you can request the subdistrict court to grant you compensation that your employee must pay you. In the event of a contract with a cancellation option, the subdistrict court may award compensation for ignoring the notice period. This compensation is then equal to the wages that your employee would have received for the applicable notice period.
Are you an employee and do you disagree with your employer’s decision to dismiss you with immediate effect? Then you can challenge this dismissal and ask the subdistrict court to annul the dismissal. You can also request compensation from the subdistrict court instead. Both requests must also be submitted to the subdistrict court 2 months after the day on which the contract was terminated by summary dismissal. In these legal proceedings, the employer will then have to prove that the instant dismissal meets the requirements. Practice shows that it is usually difficult for the employer to identify the urgent reason for dismissal. That is why the employer must take into account that in such a case the judge will rule in favour of the employee. If, as an employee, you subsequently disagree with the decision of the subdistrict court, you can appeal against this.
In order to avoid legal proceedings, it may be sensible to decide in consultation between the parties to conclude a settlement agreement and thereby convert the dismissal with immediate effect to a dismissal by mutual consent. Such a settlement agreement can bring benefits for both parties, such as short-term security and possibly the right to unemployment benefits for the employee. The employee does not have this right in the event of an instant dismissal.
Are you facing an immediate dismissal? Then it is important to be informed about your legal position and its consequences. At Law & More we understand that dismissal is one of the most far-reaching measures in employment law that has far-reaching consequences for both the employer and the employee. That is why we take a personal approach and we can assess your situation and the possibilities together with you. Law & More’s lawyers are experts in the field of dismissal law and are happy to provide you with legal advice or assistance during a dismissal procedure. Do you have any other questions about the dismissal? Please contact Law & More or visit our website Faʻateʻa.site.