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Dismissing an employee in case of a labour dispute

This information is provided by:Ministry of Social Affairs and Employment, SZWMinistry of Social Affairs and Employment, SZWNederlandse versie

You have a labour dispute and want to dismiss your employee. In that situation, there are rules to consider. For example, you must collect evidence of the dispute and build up a file. You should also make sure all possibilities to continue the employment contract have been exhausted. Take into account the following steps

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

This does not mean that you cannot fire your employee. But the labour dispute may not relate to a prohibition condition.

Comply with the notice period

In the event of a labour conflict, there is also a notice period. This is always at least 1 month and starts the moment you terminate the employment contract. Did you not comply with the notice period? Then you may have to pay your employee compensation for the salary they miss out on.

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.

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.

Apply for the dismissal with the subdistrict court judge

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

Your employee is entitled to a transition payment from the first working day of the employment contract. The time period before the district court procedures is deducted from the notice period.

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:

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

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