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.
Engage a legal adviser
You can engage a legal adviser through your legal expenses insurance or through the Dutch Bar Association (NOvA, in Dutch). A legal adviser can help you collect evidence for your file. Or advise on what to do in the event of a refusal to work or protection against dismissal.
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.
Always cancel the contract in writing
Make sure that you can prove that your employee has received the notice of termination.
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.
In case of a temporary contract
If the employee has a temporary contract, you can also wait until the contract expires. Inform them in good time that you are not renewing their contract. This is called the notice period. If you are not on time, you will have to pay a fee.
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.
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
- severance pay
- 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.
