Refusal to work is in itself grounds for summarily dismissing an employee in the Netherlands. But can this be done just like that? Our Dutch employment law specialist in Amsterdam, Mr Paul Snijders, uses case law to explain whether a dismissal for refusal to work is likely to succeed. One ruling addressed this.
Failure to comply with an employer’s ‘reasonable’ instruction
Work refusal amounts to refusing a ‘reasonable’ instruction from an employer. After all, the employer has a right of instruction under the relationship of authority in a Dutch employment contract. However, I must be talking about a reasonable instruction. So, in the context of good employee conduct, an employee must comply with such an instruction according to Dutch Labour Law. In this case, an employee had refused to deliver in the Kia (instead of the Citroën she normally used), whereupon the employee was summarily dismissed for refusing to work.
Dismissal for refusal of work valid if there is an urgent reason
The starting point for a summary dismissal is that under Article 7:677(1) of the Dutch Civil Code (BW), dismissal for work refusal is only valid if there is an urgent reason. However, the subdistrict court must consider all the circumstances of the case when assessing the urgent reason. In addition, dismissal for work refusal requires immediate notice and immediate notification of the urgent reason to the employee. Immediate means that this must be done immediately or as soon as possible. The point here is that it must be immediately clear to the employee what characteristics or behaviour have prompted the employer to terminate the employment contract.
Ultimum remedium: Dutch employer must first give official warning
In this case, the Dutch subdistrict court found that there was no legally valid instant dismissal. After all, in this case it had not been shown that the employee had refused to perform her work more often, or that she had also refused more often if she was allowed to use the Citroën.
According to the subdistrict court, summary dismissal is an ultimum remedium. Therefore, in those circumstances, it should have been up to the employer to first officially warn the employee. Instead, it should not have immediately used the most severe sanction. The subdistrict court ruled that the instant dismissal given did not meet the requirements of Section 7:677(1) of the Civil Code and had been unlawful. This meant, among other things, that the employer had to pay damages to the employee.
Official warning for dismissal for work refusal
It is often tempting for employers to dismiss an employee if they fail to show up for work. However, as this ruling shows, it is not wise because to do so immediately without having given the employee an official warning. Only if, after receiving that warning, it appears that the employee again refuses to perform the stipulated work, can immediate dismissal be initiated. This ruling also shows, incidentally, that an order must be reasonable. This means that not every work refusal is already sufficient to give an employee summary dismissal.
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