Dismissing an employee in case of a labour dispute

What is a labour dispute?

A labour dispute is a disagreement at work. For example, between you and one or more employees. Or between employees. For example, you may have a labour dispute concerning social media. Your employees' behaviour on social media may jeopardise your business interests. If the difference of opinion cannot be resolved, there is a labour dispute.

Can your employee call in sick when there is a (possible) dispute?

A labour dispute is not a valid reason for your employee to call in sick. At the time of reporting sick, there is no illness. However, your employee may become ill due to the consequences of a labour conflict. For example, stress that is caused by an unpleasant work atmosphere.

You may agree on a cooling-off period with the employee involved in a conflict. This will give you time to consider the next steps to limit the consequences of the conflict. If this does not lead to an improvement, you can call in the company doctor.

Record evidence in a file

You must be able to prove that the employment relationship with your employee is no longer acceptable. This is called the burden of proof. Collect as much evidence as possible and record it in a file. Think of emails, video images, reports of performance interviews, or complaints from customers and colleagues. Without proof, the subdistrict court may reject your application.

Check if there is a protection against dismissal

In some situations, protection against dismissal applies. There are so-called prohibition conditions (opzegverbod). A prohibition condition applies, for example:

• during the first 2 years of illness or disability
• during pregnancy, childbirth, maternity leave, and parental leave
• during your employee’s national service in their country of origin
• if your employee is a member of a trade union or is active in the works council in your company
• if discrimination is the reason for dismissal

Exceptions to the dismissal protection

There are exceptions to the dismissal protection. You may terminate the employment contract in these situations:

• your employee agrees to the dismissal, in writing
• it is during a trial period
• in the event of immediate dismissal
• you end your business
• the employee reaches the AOW pension age

Read more about when you may or may not dismiss your employee.

Comply with the notice period

In the event of a labour conflict, a notice period (opzegtermijn) applies. This is always at least 1 month and starts the moment you terminate the employment contract. With a permanent contract, the duration of the notice period depends on how long someone has been employed by you. Did you not comply with the notice period? Then you may have to pay your employee compensation for the salary they miss out on.

Temporary contracts

With a temporary contract, you can also wait until the contract expires. Just be sure to let the employee know in time that you will not extend the contract. This is also referred to as the notice period (aanzegtermijn). If you do not notify the employee on time, you have to pay a fee.

Prove that a solution is not possible

You must be able to prove that you cannot resolve the labour dispute. And that your employee no longer has a future within your company. For example, you already gave them other responsibilities. Or another job or different working hours. You let them work from home. You tried a mediator. Show that the conflict cannot be resolved. Are there still other options to explore? Then the subdistrict court may reject your application.

Mediation labour dispute

You can use an independent employment mediator to resolve a conflict. You may then avoid having to dismiss your employee or go to court. Even if a case goes to court, you can still opt for mediation.

At Mediators Federation Netherlands (in Dutch) you will find qualified mediators who can guide you in finding solutions to conflicts.

Try to agree on dismissal (mutual consent)

If there is no other option than dismissal, try to work it out together. This is called dismissal by mutual consent. In a settlement agreement, you record the agreements you make about the dismissal. For example:

• the dismissal date
• transition payment
• a non-compete clause or a non-disclosure clause
• agreements about exemption from work, if you agree that your employee no longer needs to work
• payment of holiday allowance

Ask a legal adviser about what would be most useful in your situation.

Apply for the dismissal with the subdistrict court

The subdistrict court (kantongerecht) assesses if the dismissal of your employee is justifiable. And if it really is impossible to improve the working relationship. The district court wants to know:

• what caused the labour dispute
• what you did to resolve the conflict
• if no other work is possible for your employee within your company

Transition payment

In the event of dismissal, your employee is entitled to a transition payment from the first working day of the employment contract. This is a statutory redundancy payment. Does the dismissal happen via the subdistrict court? Then the time period before the district court procedures is deducted from the notice period. You do not have to pay a transition fee if your employee agrees with the dismissal (mutual consent).