Summery dismissal for refusal to perform work in the Netherlands. Usually an employee refusing to attend work in The Netherlands would be fair grounds for disciplinary and potentially termination or dismissal. When can an employer fire an employee in The Netherlands for refusing to perform work? An employer can not terminate an employment at any time for any reason and with zero notice dismissed for refusing to come into work . Employers have not always rights to fire employees when the employee refuses to work. Our Dutch lawyers in Amsterdam with experience in dismissal can help employers and employees resolve legal issues.
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Summary dismissal for an employee refusing to attend work: urgent reason
A summary dismissal is in The Netherlands only valid if there is an urgent reason or cause (Article 7:677 paragraph 1 of the Dutch Civil Code). A notice must also be given and the urgent reason should be communicated to the employee (f.i. by a Dutch lawyer) without any delay: immediately or as soon as possible, so It must be:
- immediately clear to the employee
- which conduct is the reason for terminating the employment contract.
Further, it is up to the employer’s lawyer in a court case to prove the existence of the urgent reason.
A reasonable instruction
If an employee does not respond to a request to work without a good reason, the employer has not complied with a reasonable instruction. This can be construed as refusal to work.
Summary dismissal in Dutch Employment Law: too far-reaching?
According to established Dutch case law, summary dismissal is the extreme remedy for an employer.
This might be different if [the applicant] had been warned several times and still did not come to the office. However, there has been no question of warning several times … employee was only asked by [person A] in a Skype conversation on the morning of 9 February 2021 at around 8:15 a.m. to come to the office, but [person A] did not clearly say at that time what the consequence would be if [applicant] did not do so. … Furthermore, it has not been established that [person A] did point out to [applicant] the consequences of [applicant’s] failure to come to the office during the telephone conversation on February 9, 2021 at around 2:00 p.m., because according to [applicant], during this conversation [person A] only said that she had been fired for not coming to the office. Thus, [applicant] was not clearly warned that not coming to the office on February 9, 2021 would result in her being fired. The Subdistrict Court is therefore of the opinion that [the respondent] has not sufficiently substantiated that a less far-reaching sanction, such as a wage penalty or the withholding of vacation hours, would not have sufficed. (ECLI:NL:RBROT:2021:5605).
Reasonable instructions and assignments
Furthermore, we should take into account that even if there is a case of work refusal and the employee had a different view on this situation, the Dutch subdistrict court could still consider summary dismissal to be too far-reaching a measure. In the case below, the employee had failed three times to follow reasonable instructions and assignments:
It is not clear what the exact facts were. Immediate termination of the employment relationship is the heaviest sanction known under labor law. The consequence of this sanction is that [employee] lost his income with immediate effect and cannot claim any benefits. The Subdistrict Court is therefore of the opinion that, even if the circumstances are as outlined by CTS, the immediate termination is too severe a sanction and that another sanction could have sufficed (ECLI:NL:RBROT:2021:5605)
Persistent absenteeism and withholding pay or setting off vacation entitlements
It follows therefore from Dutch case law that only ‘persistent absenteeism’ is regarded as sufficiently serious by the Dutch subdistrict courts. A one-off failure to appear at work without (good) reason will in most cases not justify immediate dismissal. In such a situation, other possible sanctions must be considered, such as withholding pay (Art. 7:627 BW).
This usually concerns cases in which the employee had already been warned by the employer’s lawyer for improper attendance before the employee was summarily dismissed after a new case of absenteeism.
Warnings in written before summary dismissal
However, even if warnings in written have been given (f.i. by a lawyer) or the employer, this need not lead to approval of summary dismissal pursuant to ECLI:NL:GHDHA:2018:120 (Court of Appeal The Hague):
… the Court considers that the absence of [applicant] on 24 and 25 November 2016 cannot be placed on a par with the previous instances of tardiness, for which [applicant] had the warning of 22 August 2016. The fact that [applicant] had been warned of an immediate dismissal in the letter of 22 August 2016 in the event of a subsequent case of tardiness does not mean that if a case such as the present one arises, that immediate dismissal should/may be given. … By immediately proceeding to the most drastic sanction available to an employer, [Respondent] has, in the opinion of the Court of Appeal, given insufficient weight to the special circumstances under which the omission took place and to the personal circumstances and interests of [Applicant] … In view of what has been considered above, the court of appeal is of the opinion that there is no urgent reason for the immediate dismissal given by [the defendant] and that [the defendant] has used too severe a remedy with the immediate dismissal.
Stubborn refusal to work
It therefore follows from established Dutch case law that summary dismissal does not stand up in court in many cases. This will only be successful in cases of stubborn refusal to work, which continues despite warnings and other sanctions such as withholding wages or setting off vacation entitlements.
A wrongful summary dismissal in The Netherlands entitles an employee to fair compensation. The judge is in The Netherlands free to determine the amount of compensation. Often the starting point is the period during which the employee was without income and what further actual damage he can demonstrate. In case of a wrongful dismissal, the employee is also entitled to compensation for the notice period and a transitional allowance.
If you believe you have been unfairly laid off, you should contact WS Lawyers in Amsterdam.
Assistance of experienced Amsterdam Employment Law counsel
Given the damages that an employer may face if found to have been unjustified in terminating an employee for cause, employers should ensure they obtain the assistance of experienced Amsterdam Employment Law counsel prior to proceeding with such terminations. WS Advocaten Amsterdam is your source for expert advice and advocacy on today’s employment law issues. Whether you are an employer or employee, we can help. Contact us to see how we can help you with dismissal for refusal to perform work in the Netherlands.