UWV denies resignation request

Amsterdam Court April 6, 2021

Gelderland District Court Feb. 12, 2021

Dissolution of employment contract due to disrupted working relationship

In this case, we acted for the employer. The case involved a restaurant manager who lied to her employer, left work 30 minutes early, and then secretly retroactively adjusted her working hours to make it look like she did not leave 30 minutes early. This could be demonstrated through the employer’s digital system. The employment contract was dissolved by the court on the grounds of a disrupted relationship subject to 1 month’s notice and the award of the transitional compensation. The fair compensation claimed by the employee was rejected.

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Hague District Court Jan. 13, 2021

Despite commitment, no permanent contract

In this case, we assisted the employer. The employee was employed on April 1, 2019, under a temporary employment contract until Oct. 31, 2019. On Oct. 17, 2019, the employee’s employment contract was extended through Dec. 31, 2019. In doing so, the employer indicated that it would look for a new assignment for the employee effective Jan. 1, 2020. If found, the employee would receive a permanent contract.

On December 4, 2019, the employee informed the director that she had been offered a one-year contract by the account manager, whereas she had been promised a permanent contract. On December 31, 2019, the director responded, “Yes we are going to do it as we agreed. Herewith the confirmation. I will go after account manager.” On Feb. 27, 2020, the account manager indicated that he was told the contract runs until Dec. 31, 2020, and asked her if she received the contract digitally. The employee responded with: “Fine. I’ll hear from you. Thanks in advance.”. On Sept. 2, 2020, the employer sent the employee an annual contract for the period from Jan. 1 to Dec. 31, 2020. On September 9, 2020, the employee’s agent indicated that, according to the employee, a permanent contract had been created. That same morning, however, the employee had signed the annual contract and returned it to the employer.

The parties asked the subdistrict court to determine whether the employment contract in force between the parties had terminated by operation of law as of December 31, 2020 (employer’s position), or whether a contract of indefinite duration had nevertheless been created (employee’s position).

The subdistrict court ruled that the employment contract did indeed end by operation of law on Dec. 31, 2020. The subdistrict court disagreed with employee’s contention that the employer had promised her a permanent contract on Oct. 17, 2019, on the condition that a new assignment had been found by Jan. 1, 2020, which condition, according to employee, had been fulfilled. The employer correctly argued that this offer had not been accepted by the employee and that she had agreed to a one-year contract. The district judge also disagreed with the employee’s contention that the temporary contract entered into before Jan. 1, 2020, had been tacitly continued. Consultations were held on the continuation. This resulted in the employee signing the annual contract. There was no tacit continuation.

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Amsterdam District Court October 7, 2020

Dissolution of employee’s employment contract on e-ground (culpable conduct of employee): no transitional compensation and no notice period

The employer allowed two weeks of summer vacation due to business interests. The employee takes five weeks of summer vacation followed by two weeks of quarantine due to visiting an area with code orange. After two weeks, the employee is summoned several times and then salary payments are completely stopped and a termination request is filed. The court dissolves on the e-ground without awarding transitional compensation and without observing a notice period.

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Rotterdam District Court September 30, 2020

Dissolution for permanently disturbed relationship, fair compensation rejected.

In September, we acted for an employer who had a permanently disturbed relationship with an employee. The employee had committed hours fraud. This did show up in the records, but because there was no footage of it, no summary dismissal could be given.

When the employee was addressed about the hours fraud by the employer, the employee let out a stream of insults and slurs against the employer. Among other things, the employee said to the employer, “you really are a sad case” “then let me see those dirty eyes of yours” “also for that creepy prick sitting next to you” and the employee’s wife topped it off with the comments toward the employer, “you are a pervert” and “you are a very decent man but inside you are rotten.”

Because the employee had previously been addressed for using abusive and insulting language toward colleagues and superiors and he was already on a course of improvement for that reason, among others, the subdistrict court dissolved the employment contract despite the fact that the employee was completely unfit for work. The statutory transitional compensation was awarded, but the equitable compensation claimed by the employee was rejected, even though the employee was 55 years old, incapacitated and claimed to be “unable to return to work.”

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Hague District Court September 4, 2020

Assignment of employee’s wage claim

In this case from September 2020, we acted for an employee who suddenly stopped getting paid anything by the employer. The employer terminated the fixed-term employment contract with the consent of the employee or the subdistrict court/the UWV. In summary proceedings, we requested salary continuation. A settlement was reached on the spot whereby not only the back pay including legal increase and future salary were awarded, but also the full attorney’s fees with a penalty clause of 100% in case of not timely payment.

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Rotterdam District Court May 29, 2020

Employment contract dissolved; claimed equitable compensation rejected

In this case, we assisted the employer.

Employee is wife of the DGA. During the divorce, employer requested dissolution of the employment contract. The dissolution was granted because of a permanently disturbed working relationship. The fair compensation of EUR 150,000 claimed by the employee for (seriously) culpable acts or omissions of the employer was rejected in full. It was dissolved in compliance with the statutory notice period under the award of the transitional compensation.

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Amsterdam District Court March 26, 2020

Employee summarily dismissed for misuse of parking pass

On March 26, 2020, the Amsterdam District Court ruled that the employee was justified in being summarily dismissed for serious breach of trust.

Facts
The employee was employed by the employer as a parking attendant. The employment regulations state that employment is terminated summarily upon gross violation of the employer’s core values. One is acting in confidence, being sincere and transparent.

By letter dated April 9, 2019, the employer issued the employee a warning for damaging employer cameras and allowing unauthorized persons to enter. It stated that a subsequent violation could result in the termination of the employment contract.

On October 23, 2019, the employee was summarily dismissed. Investigation revealed that in the computer system, the pass number of the employee’s parking pass was removed and replaced with the internal pass number. Security was also removed from the employee’s parking pass. On several dates in October 2019, the employee’s parking pass was used to drive in and out of the parking garage while the employee was on sick leave and did not perform any work after Sept. 28, 2019. According to the employer, the employee violated the organization’s core values.

The employee argues that there was no compelling reason for summary dismissal. He indicated that he did not know how to make changes to the system and that a mechanic presumably made the changes in his presence.

Judgment
The subdistrict court does not find it plausible that the employee would not have been able to make the intended changes to the computer system. From the summary submitted by the employer, it can be inferred that the employee could handle the system well. This is confirmed by the testimony of two colleagues. Furthermore, it is impossible to see what interest the outside mechanic would have in making the aforementioned changes to the employee’s pass. Moreover, if what the employee claims were true, he should have reported this to his employer immediately, because he knew, or should have known, that the parking pass could very easily be tampered with after the modifications, which danger has materialized in practice.

According to the subdistrict court, the employee’s actions provide sufficient urgent reason to justify the immediate dismissal given by the employer. The employee violated his obligation to conduct himself as a good employee to such an extent and thereby violated the employer’s trust so seriously that the employer could not reasonably be required to continue the employment contract.

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Amsterdam Court June 25, 2019

Employee not required to give oral notice, does dissolve employment contract

In this appeal, we assisted the employer.

The employer was faced with an employee who wanted to stop working on a two-week notice. The employee, a high-level expat, wanted to be financially compensated for the expiration of the 30% rule (a tax scheme for expats that allows part of the salary to be paid net). When the employer refused, the employee verbally resigned. The employee was unwilling to comply with the one-month notice period. She also wanted to take her vacation days, which would leave her working for only two more weeks. The employer eventually agreed to the early termination date and arrangements were made to transfer the work. Within days, the employee returned to her termination.

The district judge ruled on Dec. 18, 2017, that the employee clearly and unambiguously terminated the employment contract. In addition, the subdistrict court conditionally dissolved the employment contract as of Feb. 1, 2018, due to a disrupted working relationship, without awarding any compensation.

The employee appealed this ruling. The court found that there was no clear and unambiguous notice from the employee. The employee indicated that she wished to terminate the employment contract, but there was no actual termination, according to the court. In addition, the employer should have made the employee aware of the serious consequences of voluntary termination of employment.

The employee argued that the district judge should not have dissolved her employment contract because the district judge ruled that the employee herself had terminated her employment contract. The court disagreed. According to the court, the employer had an interest in its request for dissolution of the employment contract because it could not be ruled out that a different decision would be made on appeal regarding the employee’s termination.

The court determined that the employee’s employment contract continued until Feb. 1, 2018, the date it came to an end through dissolution. Thus, the termination did not hold, but the conditional dissolution by the subdistrict court did.

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The Hague District Court June 18, 2019

Compensation surrendered lease car

In this case, we assisted the employer.

The employee was required to surrender his leased car after six months of disability pursuant to the personnel manual. After the employee turned in the lease car, he claimed compensation in the amount of EUR 934 net per month in summary proceedings because he could no longer use the lease car privately. According to the employee, the use of the leased car was a condition of employment and he was entitled to it even during illness.

Since the personnel guide stated that the employee had to return the leased car after six months of illness and the employee had agreed to this, the subdistrict court ruled that the leased car did not fall within the concept of “wages.” Therefore, the agreement that the right to use the leased car ends after six months of illness does not violate the legal obligation to continue to pay wages during illness.

The employee’s claims were rejected in their entirety.

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Eindhoven District Court May 9, 2019

Claim for back pay

Employee claimed back pay of approximately EUR 6,000 including statutory increase from our client because employee was called up less from a certain point and at a certain point no longer. Because of the client’s reliance on the legal presumption of employment and the incorrect reference period used by the employee, the employee’s claims were rejected in their entirety.

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Rotterdam District Court January 22, 2019

Lifting on suspension

Our client, a 58-year-old commercial director with 38 years of service, was placed on suspension after the employer indicated a desire to terminate the employment contract. Immediately thereafter, client received a draft settlement agreement. In it, he was awarded severance pay and the notice period.

As the reason for the suspension, the employer indicated that it no longer saw a future for the employee within the organization and therefore wanted to terminate the employment contract with him. The employee’s e-mail account was blocked. The employee was no longer allowed to interact with customers, was cut off from intranet. The employer sent an internal and external communication about employee’s absence.

In summary proceedings, the employee claimed reinstatement to his position including all duties, responsibilities and powers on pain of a penalty of EUR 5,000 for each day the employer remained in default.

In addition, the employee demanded access to the ICT systems, his email account, contact information and phone numbers in his phone, intranet and his HR records, also under penalty of a fine. The suspension the employee considered abusive and derogatory.

The subdistrict court held that the fact that the employer had since filed a request for dissolution for the employee in another court on the grounds of dysfunction and a disturbed working relationship plays only a marginal role in summary proceedings. In summary proceedings, the only issue at stake is whether there is a compelling reason to suspend the employee in anticipation of a possible dissolution.

The premise here is that the employee has a legitimate interest in performing the work. The mere fact that the employer wants to terminate the contract is not enough to put an employee on suspension.

The district judge considered that the employer did not have good grounds for suspension. This applied even more heavily, as the employer had waited almost two months to file the petition for dissolution when the suspension had already been given. The employer had not specified what the undesirable situation at work would result from the employee’s return. It is conceivable that immediate colleagues would perceive the return as somewhat uncomfortable. However, this is the direct result of the employer’s decision to immediately suspend the employee and inform colleagues and work associates about it. If at all a difficult atmosphere would develop in the workplace, it is not the employee’s responsibility. That mutual trust has suffered a dent is certain. It cannot be seen that this prevents the employee from returning to work.

The employee had to be returned to work within two days of service of the judgment under penalty of a fine. For the entire verdict: click here.

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East Brabant District Court Nov. 8, 2018

Client very content, lion’s share of claims employee dismissed

In this case, we assisted the employer. The employee petitioned the subdistrict court primarily to reinstate the employment contract between the parties, alternatively for equitable compensation and for payment of salary, in addition to some ancillary requests.

The employee disagreed with the earlier UWV dismissal permit and therefore claimed either reinstatement of employment or equitable compensation. The district judge dismissed those claims with the exception of two weeks’ salary. The employee had not shown up for work despite the employer’s instructions, so the employer had withheld salary for two weeks. The subdistrict court ruled that against the background of an earlier period in which the employee had hardly anything to do in the office, there was sufficient reason for the employee not to appear in the office. However, this concerned only a small part of the employee’s claims.

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Rotterdam District Court September 28, 2018

Instant dismissal for self-enrichment

In this case, we assisted the employer (a hospitality company). The employee (Chief Office F&O) helped an acquaintance (a certain R.) get contracting work with the employer. For this, the employee received a percentage of sales. R. forwarded a large number of WhatsApp messages to the employer’s management. As a result, an interview with the employee took place and he was suspended. Another interview with the employee took place a week later, during which he was summarily dismissed. By letter, the employer confirmed the dismissal to the employee. The grounds for dismissal were as follows: serious conflict of interest, self-enrichment at the expense of (the business relations of) his employer, and gross lack of integrity.

The employee asked the subdistrict court to rule, among other things, that there was no urgent reason for the summary dismissal. The employer requested, among other things, that the employee be ordered to pay EUR 8,932.50, that the employment contract be dissolved in case the employee had not been validly summarily dismissed, and that it be ruled that the employee was not entitled to the transition allowance.

The district judge ruled as follows.

Employee requests
The content of the WhatsApp messages is not tender. This shows that the employee behaved in a manner incompatible with his job. From R.’s explanations, it follows:
(1) that the employee accepted money from R. in return for awarding work;
(2) that the employee maintained close relations with various parties and fed (pricing) information to them;
(3) that the employee had work done in his private residence by contractors who were also active with the employer.

The employee confirmed that he was friends with R. and that he helped him get work with the employer. In addition, the employee confirmed that he received a total of about EUR 40,000 to EUR 45,000 from R. It is understandable that the employee was suspended for the duration of the investigation into the information received. In the face of the employer’s detailed assertions, substantiated by WhatsApp messages and explanations from R., the employee provided little concrete evidence. According to the district judge, there was an impermissible conflict of interest. It has also been established that the employee himself benefited from the award of work. This put the interests of the employer that the employee was supposed to serve in the background.

The subdistrict court ruled that the employee was justified in being summarily dismissed.

Employer requests
By interim order dated July 30, 2018, the employment contract between the parties was terminated effective September 1, 2018. The subdistrict court ruled that the employee acted seriously culpable. Therefore, the employer does not owe the transition fee and the employee owes the employer the fee of EUR 8,932.50.

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Rotterdam District Court September 13, 2018

Instant dismissal for theft of glasses

In this case, we assisted the employer. The employer was contacted by telephone by an employee’s acquaintance. This acquaintance indicated that he went to the employee’s home and found items belonging to the employer there (including bottles of wine and glasses). Thereupon, the employer conducted a bag check. The employee was visibly startled when she saw that a check was being made and twice tried to run away. Upon bag check, the employee was found to have a tray containing six glasses in her bag. The employee was immediately suspended on suspicion of theft. The next day, a conversation took place between the employer and the employee, during which the employee was summarily dismissed.

After the immediate dismissal given, the employer applied to the subdistrict court for a declaratory judgment that the employee was validly dismissed with immediate effect and an award of liquidated damages (which had already been partially offset against the final settlement). The employee in turn sought annulment of the termination, reinstatement and wages or equitable compensation, the compensation due to the irregular termination, paychecks and extrajudicial collection costs.

The employer argued that the employee attempted to take a tray containing six glasses without permission and without payment and that this justified dismissal. In addition, the employer argued that the employee had intentionally or culpably given her an urgent reason for summary dismissal and she therefore owed compensation in the amount of wages for the notice period.

The employee indicated that she did not know that the glasses were in her bag and that she was not validly summarily dismissed because the urgent reason as contained in the dismissal letter was not communicated to her orally. The employer said she was fired because she had the glasses with her during the bag check. The dismissal letter stated the following reason for the dismissal: on several occasions, the employee took home goods belonging to the employer without permission and this is classified as theft.

The employee did not attend the hearing. Since the employee offered no logical explanation for the fact that her bag contained a tray with six glasses belonging to the employer, the subdistrict court assumed that the employee was guilty of theft. It must have been clear to the employee that she was fired because glasses were found in her bag during the bag check.

The district judge ruled that the dismissal was legally valid and awarded liquidated damages.

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Hague Court June 19, 2018

Rotterdam District Court June 22, 2016

Also on appeal: no violation of reinstatement condition

In this case, we assisted an employer who had terminated the employment contract of an employee (“the bailiff”) after receiving permission to do so from the UWV. After a few months, the employer hired two new employees (collection agents), some of whom began performing bailiff work. The bailiff took the position that the employer had violated the reemployment condition, that his employment contract had not been validly terminated, and he claimed wages.

The subdistrict court ruled that the positions of the new employees did not correspond to the bailiff’s former position. Thus, the employer had not violated the reemployment condition, and the bailiff’s claims were dismissed.

The bailiff appealed. The court also found that the work of the two new employees was so different from the bailiff’s previous work that it was not work of the same nature. Thus, there is no violation of the reemployment condition. The court upheld the district judge’s ruling.

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East Brabant District Court March 27, 2018

Counterclaims dismissed, only reduced transitional compensation awarded

In this matter, client Topholding Voergroep Zuid B.V. sought the dissolution of the employment contract with an employee, with the employee defending against the dissolution and also filing a counterclaim.

Among other things, the employee claimed the following:

– a transition allowance of EUR 32,892;
– equitable compensation of EUR 147,560;
– additional compensation in accordance with the Social Statute in the amount of EUR 39,589 or EUR 6,624;
– An untaxed mobility budget of €3,025;
– payment of salary over the full 15-week notice period, without regard to the time the proceedings took, on the grounds that the employer had acted with serious culpability;
– waiver of the relationship clause included in the employment contract;
– declaratory judgment that the employee should be in a higher job scale and therefore entitled to that higher salary;
– Declare that the employee’s salary was EUR 8,922 gross excluding vacation allowance instead of EUR 8,211;
– the statutory increase of 50% on the underpaid salary

The employee’s claims added up to more than EUR 300,000 gross. However, the court only awarded a reduced severance payment of EUR 30,226.05 gross, with an order to pay the employee’s legal costs.

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Gelderland District Court March 21, 2018

Competition and relationship clause not legally valid nor unlawful competition

In this case, we assisted an employee who was held by his former employer to a non-competition clause from an old contract and a non-solicitation clause from a new fixed-term contract. In case both clauses ceased to be legally valid, a claim of unlawful competition was made. The employer had seized the bank accounts of employee and his wife to secure the recovery of employer’s claim.

On behalf of client, we filed and won a dissolution summary action.

The preliminary injunction court ruled that the first non-competition clause from the indefinite-duration contract, had lapsed with the entry into force of the fixed-term contract entered into by the parties after employee’s state pension age. This fixed-term contract contained a non-solicitation clause. However, the court did not consider this non-solicitation clause to be legally valid as the contract had been entered into after the Work and Security Act came into force and no written justification had been included showing that the clause was necessary due to compelling business or service interests. For that reason, the non-solicitation clause was not legally valid, the preliminary injunction judge said.

There was no unlawful competition, according to the preliminary injunction judge. It was clear that employee did have customer contact and some customers and suppliers had transferred to the new employer, but the five behaviors alleged by the ex-employer did not lead to a structural loss of customers and suppliers in any event, nor was there any systematic purposeful contact with ex-employer’s relationships, nor was there any substantial lasting detriment to the ex-employer’s business flow.

The mere transfer of a number of customers to the new employer, assuming five or fewer, does not sufficiently detract from the business flow since the former employer had approximately 200 customers. Nor were there any additional circumstances. Thus, there was no unlawful competition.

The ex-employer was ordered to lift the precautionary attachment on pain of a penalty and the ex-employer was ordered to pay the legal costs.

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Amsterdam District Court February 15, 2018

Employee’s interests prevailed over employer’s: non-solicitation clause suspended

In this matter, we acted on behalf of the employee to suspend the non-solicitation clause agreed to against the employer.

The non-solicitation clause prevented the employee, who, although 64 years old, still had plenty of job opportunities, from joining companies that were eager to hire him for a year.

The subdistrict court assessed in summary proceedings whether the employee’s non-solicitation clause should be nullified on the grounds that the employee’s interest in nullifying the non-solicitation clause was greater in relation to the employer’s business interest to be protected.

The proceedings were on the cutting edge, as the employer counterclaimed on the grounds that the employee had had contact with the employer’s business associates, which meant that the non-solicitation clause had already been violated and fines would have been forfeited. In accordance with the contentions we made on behalf of the employee, the summary judgment judge made a principled distinction between a non-compete and a non-solicitation clause. A non-solicitation clause does not purport to protect trade secrets. The non-solicitation clause deals with working for relations that puts the employer at a disadvantage in its position in the market. Therefore, the relevant interest of the employer lies in commercially sensitive knowledge and experience that the employee possesses and that he could use with relations of the employer. The fact that the relationships in question were not competitors of the employer made the importance of knowledge of prices and costs somewhat relatable.

Based on this consideration, among others, the subdistrict court ruled in summary proceedings that the agreed-upon non-solicitation clause should be suspended because the interests of the employee took precedence over those of the employer.

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Amsterdam District Court February 20, 2018

Instant dismissal for theft and award of liquidated damages to employer

In this case, we assisted an employer whose Floor Manager had pleaded guilty to stealing cash proceeds and tip money. After a negative cash difference of nearly EUR 7,000 was found, the employee was invited for an interview. He called in sick and remained unreachable for several days. Also, the employee did not respond or hardly responded to calls from the employer for interviews. After failing to attend more than four interviews, the employee was summarily dismissed for culpable acts or omissions (financial malfeasance and repeatedly failing to comply with reasonable or urgent requests by employer to contact and explain cash differences and film footage).

After the instant dismissal given, the employer filed a conditional rescission request. The employee, in turn, requested that the summary dismissal be annulled and sought equitable compensation as well as a transition allowance and back pay and vacation pay.

The subdistrict court ruled that the employer had called the employee for an interview on at least five different days. Since the employee was a manager and on at least one of those five days he had indicated he would come until just before the meeting but then still did not come, the employee had been grossly negligent. The employee should have realized that if the employer invited him to a meeting about missing money, he should make sure he was present at that meeting. Because the employee could not be reached by his employer while there were cash differences that needed to be discussed, there is an urgent reason for immediate dismissal. Application to set aside termination is denied. The employer does not owe any transitional compensation or fair compensation.

Because the summary dismissal stands, the conditional rescission is denied. The court considered that the employer was justified in withholding the liquidated damages.

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Amsterdam District Court 18-12-2017

Employee held to oral notice

In this case, we assisted the employer confronted with an employee who wanted to stop working on two-week notice. The employee, a high-level expat, wanted to be financially compensated for the expiration of the 30% rule (a tax scheme for expats that allows part of the salary to be paid net). When the employer refused, the employee verbally resigned. The employee was unwilling to comply with the one-month notice period. She also wanted to take her vacation days, which would leave her working for only two more weeks. The employer eventually agreed to the early termination date and arrangements were made to transfer the work. Within days, the employee returned to her termination.

The employer held the employee to her notice, released her from work and filed a conditional rescission petition in case the employment contract was not terminated by the notice. Inadvertently, the employer did continue to pay the employee’s wages.

The employee took the position that there was no termination and that her employment contract was still in existence. In the event that the employment contract was dissolved, the employee requested equitable compensation of EUR 320,000.

The district judge ruled that the employee clearly and unambiguously terminated the employment contract. As a result, the employer does not have to continue paying wages and he may recover the cost of the employee’s children’s international school (+ EUR 40,000.– per year).

In addition, the subdistrict court conditionally dissolved the employment contract due to a disturbed working relationship, without awarding any compensation. The employee did not open up about her tax advisor’s advice and left ambiguity about her termination letter. To the CEO, the employee said that the HR Manager had her termination letter and to the HR Manager that the CEO had it. More loyalty should be expected of an employee in a high position.

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Rotterdam District Court 12-10-2017

Study expenses rightly deducted from salary

In this case, we assisted the employer.

The employer had agreed with the employee in a study agreement that the employer would provide the amount of the employee’s study (EUR 3,000.00) as a loan. This amount would be waived one-third for each year the employee was employed after graduation. Three months after the employee completed his degree, he terminated his employment contract. The employer set off the amount of EUR 3,000 against the employee’s salary in two equal parts. The employee claimed (among other things) a declaratory judgment that the study agreement was null and void because the actual costs of the study would be much lower (approximately EUR 1,000.00) and also invoked the principle of equality because colleagues had to pay back less (EUR 1,000.00 instead of EUR 3,000.00). The employee’s claims were rejected by the subdistrict court because summary judgment proceedings do not lend themselves to declaratory judgment. The invocation of the principle of equality was also rejected because the cases were not equal. The district judge ruled that the study costs included in the study agreement were not far out of line with reality if all related costs were included in the calculation. The study agreement had to be complied with and employer was allowed to deduct study costs of EUR 3,000 from wages, even if the employee received only EUR 250 net in salary in the last two months.

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Amsterdam District Court 22-09-2017

Payroll taxes owed by employer are subject to final discharge

In this case, we assisted a high-level employee. The employee had entered into a termination agreement with the employer. The arrangements were set out in a settlement agreement.

The employee claimed payment from the employer of the amounts as included in the settlement agreement. In the settlement agreement, the parties agreed to final discharge. After concluding the settlement agreement, the employer discovered that no tax had been paid on an employee’s bonus payment. This bonus had inadvertently been paid to the employee gross instead of net. In counterclaim, the employer claimed offset of the overpayment against the outstanding amounts. The subdistrict court assessed the final discharge using the Haviltex formula and the factual circumstances at the time the settlement agreement was reached and concluded that the tax payment was covered by the final discharge agreed upon by the parties. The district judge dismissed employer’s counterclaim and granted employee’s claims.

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Gelderland District Court 21-07-2017

Instant dismissal for theft and incitement to theft

In this case, we assisted a hospitality employer dealing with a managerial employee who encouraged his subordinate colleagues to take items belonging to the employer. This managerial employee rented a room from the employer. In this house he lived with several subordinate colleagues. During a visit to this residence, the assistant manager found items belonging to the employer, including a substantial amount of food. The employer addressed this to the employees. When it became clear (through WhatsApp and Facebook Messenger messages) that the managerial employee was the one who incited the rest to steal from the employer, the manager was summarily dismissed. The employer also filed charges. The supervisor asked the subdistrict court to annul the summary dismissal and claimed, among other things, wages and admission to his room. In addition, the managing employee filed nine wage claims. The employer asked the subdistrict court to order the managerial employee to pay damages and, in case the dismissal was overturned, to rescind the employment contract. The district judge ruled that the summary dismissal was validly given. However, three of the managerial employee’s nine wage claims were awarded.

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Rotterdam District Court 13-07-2017

Sniffing executive

In this case, we assisted a hospitality employer that demoted an employee to a position (with a stepwise reduction in salary), due to, among other things, drug use during the return trip from a company outing. The employee did not agree to the job change, and he claimed in summary proceedings reinstatement to his former position and payment of his former salary. The employee indicated that the employer should not unilaterally change his position because there was no compelling interest. The employee acknowledged (after previously repeatedly denying it) to have snorted a limited amount of cocaine during the return trip from the company outing. The employee expressed regret about this and never used cocaine while performing his duties or was under the influence during working hours. The district judge ruled that the employee had crossed a clear line. Not only did the employee violate the applicable rules, but his authority was so seriously compromised that he cannot (at this time) return as a manager within the organization. On top of that, the employee did not immediately acknowledge his mistake. This also contributes to a legitimate lack of confidence on the part of the employer in being able to fill a leadership position. This justifies the demotion measure taken. By giving the employee a last chance, the employer more than behaved as a good employer. The employee’s claims were dismissed.

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Order District Court East Brabant 3-11-2016

Dissolution of employment contract after marriage between colleagues breaks down

In this case, we assisted an employee who was married to a co-worker. After the termination of this marriage, employee had called in sick. Employer wished to terminate the employee’s employment contract because of the private situation between the two employees. The employee argued that the requested rescission should be rejected because there was no notice due to illness. If the request was nevertheless granted, the employee requested payment of transitional and equitable compensation, payment of vacation pay and vacations, fulfillment of the life-course savings plan and payment of related amounts. The judge ruled that there was no termination due to illness, but that there was a seriously disturbed relationship, both business and personal. Because the employee’s ex-husband was the only fee-earner at that clinic and was indispensable to employer for that reason, the court dissolved the employee’s employment contract. The judge awarded the severance pay, payment of vacation pay and vacation days, fulfillment of the life-course plan and payment of related amounts. The equitable compensation was rejected because, according to the judge, there was no serious culpability on the part of the employer.

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UWV denies resignation request

Amsterdam Court April 6, 2021

Gelderland District Court Feb. 12, 2021

Dissolution of employment contract due to disrupted working relationship

In this case, we acted for the employer. The case involved a restaurant manager who lied to her employer, left work 30 minutes early, and then secretly retroactively adjusted her working hours to make it look like she did not leave 30 minutes early. This could be demonstrated through the employer’s digital system. The employment contract was dissolved by the court on the grounds of a disrupted relationship subject to 1 month’s notice and the award of the transitional compensation. The fair compensation claimed by the employee was rejected.

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Hague District Court Jan. 13, 2021

Despite commitment, no permanent contract

In this case, we assisted the employer. The employee was employed on April 1, 2019, under a temporary employment contract until Oct. 31, 2019. On Oct. 17, 2019, the employee’s employment contract was extended through Dec. 31, 2019. In doing so, the employer indicated that it would look for a new assignment for the employee effective Jan. 1, 2020. If found, the employee would receive a permanent contract.

On December 4, 2019, the employee informed the director that she had been offered a one-year contract by the account manager, whereas she had been promised a permanent contract. On December 31, 2019, the director responded, “Yes we are going to do it as we agreed. Herewith the confirmation. I will go after account manager.” On Feb. 27, 2020, the account manager indicated that he was told the contract runs until Dec. 31, 2020, and asked her if she received the contract digitally. The employee responded with: “Fine. I’ll hear from you. Thanks in advance.”. On Sept. 2, 2020, the employer sent the employee an annual contract for the period from Jan. 1 to Dec. 31, 2020. On September 9, 2020, the employee’s agent indicated that, according to the employee, a permanent contract had been created. That same morning, however, the employee had signed the annual contract and returned it to the employer.

The parties asked the subdistrict court to determine whether the employment contract in force between the parties had terminated by operation of law as of December 31, 2020 (employer’s position), or whether a contract of indefinite duration had nevertheless been created (employee’s position).

The subdistrict court ruled that the employment contract did indeed end by operation of law on Dec. 31, 2020. The subdistrict court disagreed with employee’s contention that the employer had promised her a permanent contract on Oct. 17, 2019, on the condition that a new assignment had been found by Jan. 1, 2020, which condition, according to employee, had been fulfilled. The employer correctly argued that this offer had not been accepted by the employee and that she had agreed to a one-year contract. The district judge also disagreed with the employee’s contention that the temporary contract entered into before Jan. 1, 2020, had been tacitly continued. Consultations were held on the continuation. This resulted in the employee signing the annual contract. There was no tacit continuation.

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Amsterdam District Court October 7, 2020

Dissolution of employee’s employment contract on e-ground (culpable conduct of employee): no transitional compensation and no notice period

The employer allowed two weeks of summer vacation due to business interests. The employee takes five weeks of summer vacation followed by two weeks of quarantine due to visiting an area with code orange. After two weeks, the employee is summoned several times and then salary payments are completely stopped and a termination request is filed. The court dissolves on the e-ground without awarding transitional compensation and without observing a notice period.

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Rotterdam District Court September 30, 2020

Dissolution for permanently disturbed relationship, fair compensation rejected.

In September, we acted for an employer who had a permanently disturbed relationship with an employee. The employee had committed hours fraud. This did show up in the records, but because there was no footage of it, no summary dismissal could be given.

When the employee was addressed about the hours fraud by the employer, the employee let out a stream of insults and slurs against the employer. Among other things, the employee said to the employer, “you really are a sad case” “then let me see those dirty eyes of yours” “also for that creepy prick sitting next to you” and the employee’s wife topped it off with the comments toward the employer, “you are a pervert” and “you are a very decent man but inside you are rotten.”

Because the employee had previously been addressed for using abusive and insulting language toward colleagues and superiors and he was already on a course of improvement for that reason, among others, the subdistrict court dissolved the employment contract despite the fact that the employee was completely unfit for work. The statutory transitional compensation was awarded, but the equitable compensation claimed by the employee was rejected, even though the employee was 55 years old, incapacitated and claimed to be “unable to return to work.”

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Hague District Court September 4, 2020

Assignment of employee’s wage claim

In this case from September 2020, we acted for an employee who suddenly stopped getting paid anything by the employer. The employer terminated the fixed-term employment contract with the consent of the employee or the subdistrict court/the UWV. In summary proceedings, we requested salary continuation. A settlement was reached on the spot whereby not only the back pay including legal increase and future salary were awarded, but also the full attorney’s fees with a penalty clause of 100% in case of not timely payment.

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Rotterdam District Court May 29, 2020

Employment contract dissolved; claimed equitable compensation rejected

In this case, we assisted the employer.

Employee is wife of the DGA. During the divorce, employer requested dissolution of the employment contract. The dissolution was granted because of a permanently disturbed working relationship. The fair compensation of EUR 150,000 claimed by the employee for (seriously) culpable acts or omissions of the employer was rejected in full. It was dissolved in compliance with the statutory notice period under the award of the transitional compensation.

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Amsterdam District Court March 26, 2020

Employee summarily dismissed for misuse of parking pass

On March 26, 2020, the Amsterdam District Court ruled that the employee was justified in being summarily dismissed for serious breach of trust.

Facts
The employee was employed by the employer as a parking attendant. The employment regulations state that employment is terminated summarily upon gross violation of the employer’s core values. One is acting in confidence, being sincere and transparent.

By letter dated April 9, 2019, the employer issued the employee a warning for damaging employer cameras and allowing unauthorized persons to enter. It stated that a subsequent violation could result in the termination of the employment contract.

On October 23, 2019, the employee was summarily dismissed. Investigation revealed that in the computer system, the pass number of the employee’s parking pass was removed and replaced with the internal pass number. Security was also removed from the employee’s parking pass. On several dates in October 2019, the employee’s parking pass was used to drive in and out of the parking garage while the employee was on sick leave and did not perform any work after Sept. 28, 2019. According to the employer, the employee violated the organization’s core values.

The employee argues that there was no compelling reason for summary dismissal. He indicated that he did not know how to make changes to the system and that a mechanic presumably made the changes in his presence.

Judgment
The subdistrict court does not find it plausible that the employee would not have been able to make the intended changes to the computer system. From the summary submitted by the employer, it can be inferred that the employee could handle the system well. This is confirmed by the testimony of two colleagues. Furthermore, it is impossible to see what interest the outside mechanic would have in making the aforementioned changes to the employee’s pass. Moreover, if what the employee claims were true, he should have reported this to his employer immediately, because he knew, or should have known, that the parking pass could very easily be tampered with after the modifications, which danger has materialized in practice.

According to the subdistrict court, the employee’s actions provide sufficient urgent reason to justify the immediate dismissal given by the employer. The employee violated his obligation to conduct himself as a good employee to such an extent and thereby violated the employer’s trust so seriously that the employer could not reasonably be required to continue the employment contract.

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Amsterdam Court June 25, 2019

Employee not required to give oral notice, does dissolve employment contract

In this appeal, we assisted the employer.

The employer was faced with an employee who wanted to stop working on a two-week notice. The employee, a high-level expat, wanted to be financially compensated for the expiration of the 30% rule (a tax scheme for expats that allows part of the salary to be paid net). When the employer refused, the employee verbally resigned. The employee was unwilling to comply with the one-month notice period. She also wanted to take her vacation days, which would leave her working for only two more weeks. The employer eventually agreed to the early termination date and arrangements were made to transfer the work. Within days, the employee returned to her termination.

The district judge ruled on Dec. 18, 2017, that the employee clearly and unambiguously terminated the employment contract. In addition, the subdistrict court conditionally dissolved the employment contract as of Feb. 1, 2018, due to a disrupted working relationship, without awarding any compensation.

The employee appealed this ruling. The court found that there was no clear and unambiguous notice from the employee. The employee indicated that she wished to terminate the employment contract, but there was no actual termination, according to the court. In addition, the employer should have made the employee aware of the serious consequences of voluntary termination of employment.

The employee argued that the district judge should not have dissolved her employment contract because the district judge ruled that the employee herself had terminated her employment contract. The court disagreed. According to the court, the employer had an interest in its request for dissolution of the employment contract because it could not be ruled out that a different decision would be made on appeal regarding the employee’s termination.

The court determined that the employee’s employment contract continued until Feb. 1, 2018, the date it came to an end through dissolution. Thus, the termination did not hold, but the conditional dissolution by the subdistrict court did.

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The Hague District Court June 18, 2019

Compensation surrendered lease car

In this case, we assisted the employer.

The employee was required to surrender his leased car after six months of disability pursuant to the personnel manual. After the employee turned in the lease car, he claimed compensation in the amount of EUR 934 net per month in summary proceedings because he could no longer use the lease car privately. According to the employee, the use of the leased car was a condition of employment and he was entitled to it even during illness.

Since the personnel guide stated that the employee had to return the leased car after six months of illness and the employee had agreed to this, the subdistrict court ruled that the leased car did not fall within the concept of “wages.” Therefore, the agreement that the right to use the leased car ends after six months of illness does not violate the legal obligation to continue to pay wages during illness.

The employee’s claims were rejected in their entirety.

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Eindhoven District Court May 9, 2019

Claim for back pay

Employee claimed back pay of approximately EUR 6,000 including statutory increase from our client because employee was called up less from a certain point and at a certain point no longer. Because of the client’s reliance on the legal presumption of employment and the incorrect reference period used by the employee, the employee’s claims were rejected in their entirety.

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Rotterdam District Court January 22, 2019

Lifting on suspension

Our client, a 58-year-old commercial director with 38 years of service, was placed on suspension after the employer indicated a desire to terminate the employment contract. Immediately thereafter, client received a draft settlement agreement. In it, he was awarded severance pay and the notice period.

As the reason for the suspension, the employer indicated that it no longer saw a future for the employee within the organization and therefore wanted to terminate the employment contract with him. The employee’s e-mail account was blocked. The employee was no longer allowed to interact with customers, was cut off from intranet. The employer sent an internal and external communication about employee’s absence.

In summary proceedings, the employee claimed reinstatement to his position including all duties, responsibilities and powers on pain of a penalty of EUR 5,000 for each day the employer remained in default.

In addition, the employee demanded access to the ICT systems, his email account, contact information and phone numbers in his phone, intranet and his HR records, also under penalty of a fine. The suspension the employee considered abusive and derogatory.

The subdistrict court held that the fact that the employer had since filed a request for dissolution for the employee in another court on the grounds of dysfunction and a disturbed working relationship plays only a marginal role in summary proceedings. In summary proceedings, the only issue at stake is whether there is a compelling reason to suspend the employee in anticipation of a possible dissolution.

The premise here is that the employee has a legitimate interest in performing the work. The mere fact that the employer wants to terminate the contract is not enough to put an employee on suspension.

The district judge considered that the employer did not have good grounds for suspension. This applied even more heavily, as the employer had waited almost two months to file the petition for dissolution when the suspension had already been given. The employer had not specified what the undesirable situation at work would result from the employee’s return. It is conceivable that immediate colleagues would perceive the return as somewhat uncomfortable. However, this is the direct result of the employer’s decision to immediately suspend the employee and inform colleagues and work associates about it. If at all a difficult atmosphere would develop in the workplace, it is not the employee’s responsibility. That mutual trust has suffered a dent is certain. It cannot be seen that this prevents the employee from returning to work.

The employee had to be returned to work within two days of service of the judgment under penalty of a fine. For the entire verdict: click here.

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East Brabant District Court Nov. 8, 2018

Client very content, lion’s share of claims employee dismissed

In this case, we assisted the employer. The employee petitioned the subdistrict court primarily to reinstate the employment contract between the parties, alternatively for equitable compensation and for payment of salary, in addition to some ancillary requests.

The employee disagreed with the earlier UWV dismissal permit and therefore claimed either reinstatement of employment or equitable compensation. The district judge dismissed those claims with the exception of two weeks’ salary. The employee had not shown up for work despite the employer’s instructions, so the employer had withheld salary for two weeks. The subdistrict court ruled that against the background of an earlier period in which the employee had hardly anything to do in the office, there was sufficient reason for the employee not to appear in the office. However, this concerned only a small part of the employee’s claims.

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Rotterdam District Court September 28, 2018

Instant dismissal for self-enrichment

In this case, we assisted the employer (a hospitality company). The employee (Chief Office F&O) helped an acquaintance (a certain R.) get contracting work with the employer. For this, the employee received a percentage of sales. R. forwarded a large number of WhatsApp messages to the employer’s management. As a result, an interview with the employee took place and he was suspended. Another interview with the employee took place a week later, during which he was summarily dismissed. By letter, the employer confirmed the dismissal to the employee. The grounds for dismissal were as follows: serious conflict of interest, self-enrichment at the expense of (the business relations of) his employer, and gross lack of integrity.

The employee asked the subdistrict court to rule, among other things, that there was no urgent reason for the summary dismissal. The employer requested, among other things, that the employee be ordered to pay EUR 8,932.50, that the employment contract be dissolved in case the employee had not been validly summarily dismissed, and that it be ruled that the employee was not entitled to the transition allowance.

The district judge ruled as follows.

Employee requests
The content of the WhatsApp messages is not tender. This shows that the employee behaved in a manner incompatible with his job. From R.’s explanations, it follows:
(1) that the employee accepted money from R. in return for awarding work;
(2) that the employee maintained close relations with various parties and fed (pricing) information to them;
(3) that the employee had work done in his private residence by contractors who were also active with the employer.

The employee confirmed that he was friends with R. and that he helped him get work with the employer. In addition, the employee confirmed that he received a total of about EUR 40,000 to EUR 45,000 from R. It is understandable that the employee was suspended for the duration of the investigation into the information received. In the face of the employer’s detailed assertions, substantiated by WhatsApp messages and explanations from R., the employee provided little concrete evidence. According to the district judge, there was an impermissible conflict of interest. It has also been established that the employee himself benefited from the award of work. This put the interests of the employer that the employee was supposed to serve in the background.

The subdistrict court ruled that the employee was justified in being summarily dismissed.

Employer requests
By interim order dated July 30, 2018, the employment contract between the parties was terminated effective September 1, 2018. The subdistrict court ruled that the employee acted seriously culpable. Therefore, the employer does not owe the transition fee and the employee owes the employer the fee of EUR 8,932.50.

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Rotterdam District Court September 13, 2018

Instant dismissal for theft of glasses

In this case, we assisted the employer. The employer was contacted by telephone by an employee’s acquaintance. This acquaintance indicated that he went to the employee’s home and found items belonging to the employer there (including bottles of wine and glasses). Thereupon, the employer conducted a bag check. The employee was visibly startled when she saw that a check was being made and twice tried to run away. Upon bag check, the employee was found to have a tray containing six glasses in her bag. The employee was immediately suspended on suspicion of theft. The next day, a conversation took place between the employer and the employee, during which the employee was summarily dismissed.

After the immediate dismissal given, the employer applied to the subdistrict court for a declaratory judgment that the employee was validly dismissed with immediate effect and an award of liquidated damages (which had already been partially offset against the final settlement). The employee in turn sought annulment of the termination, reinstatement and wages or equitable compensation, the compensation due to the irregular termination, paychecks and extrajudicial collection costs.

The employer argued that the employee attempted to take a tray containing six glasses without permission and without payment and that this justified dismissal. In addition, the employer argued that the employee had intentionally or culpably given her an urgent reason for summary dismissal and she therefore owed compensation in the amount of wages for the notice period.

The employee indicated that she did not know that the glasses were in her bag and that she was not validly summarily dismissed because the urgent reason as contained in the dismissal letter was not communicated to her orally. The employer said she was fired because she had the glasses with her during the bag check. The dismissal letter stated the following reason for the dismissal: on several occasions, the employee took home goods belonging to the employer without permission and this is classified as theft.

The employee did not attend the hearing. Since the employee offered no logical explanation for the fact that her bag contained a tray with six glasses belonging to the employer, the subdistrict court assumed that the employee was guilty of theft. It must have been clear to the employee that she was fired because glasses were found in her bag during the bag check.

The district judge ruled that the dismissal was legally valid and awarded liquidated damages.

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Hague Court June 19, 2018

Rotterdam District Court June 22, 2016

Also on appeal: no violation of reinstatement condition

In this case, we assisted an employer who had terminated the employment contract of an employee (“the bailiff”) after receiving permission to do so from the UWV. After a few months, the employer hired two new employees (collection agents), some of whom began performing bailiff work. The bailiff took the position that the employer had violated the reemployment condition, that his employment contract had not been validly terminated, and he claimed wages.

The subdistrict court ruled that the positions of the new employees did not correspond to the bailiff’s former position. Thus, the employer had not violated the reemployment condition, and the bailiff’s claims were dismissed.

The bailiff appealed. The court also found that the work of the two new employees was so different from the bailiff’s previous work that it was not work of the same nature. Thus, there is no violation of the reemployment condition. The court upheld the district judge’s ruling.

For the ruling of the Hague Court of Appeal click here.

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East Brabant District Court March 27, 2018

Counterclaims dismissed, only reduced transitional compensation awarded

In this matter, client Topholding Voergroep Zuid B.V. sought the dissolution of the employment contract with an employee, with the employee defending against the dissolution and also filing a counterclaim.

Among other things, the employee claimed the following:

– a transition allowance of EUR 32,892;
– equitable compensation of EUR 147,560;
– additional compensation in accordance with the Social Statute in the amount of EUR 39,589 or EUR 6,624;
– An untaxed mobility budget of €3,025;
– payment of salary over the full 15-week notice period, without regard to the time the proceedings took, on the grounds that the employer had acted with serious culpability;
– waiver of the relationship clause included in the employment contract;
– declaratory judgment that the employee should be in a higher job scale and therefore entitled to that higher salary;
– Declare that the employee’s salary was EUR 8,922 gross excluding vacation allowance instead of EUR 8,211;
– the statutory increase of 50% on the underpaid salary

The employee’s claims added up to more than EUR 300,000 gross. However, the court only awarded a reduced severance payment of EUR 30,226.05 gross, with an order to pay the employee’s legal costs.

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Gelderland District Court March 21, 2018

Competition and relationship clause not legally valid nor unlawful competition

In this case, we assisted an employee who was held by his former employer to a non-competition clause from an old contract and a non-solicitation clause from a new fixed-term contract. In case both clauses ceased to be legally valid, a claim of unlawful competition was made. The employer had seized the bank accounts of employee and his wife to secure the recovery of employer’s claim.

On behalf of client, we filed and won a dissolution summary action.

The preliminary injunction court ruled that the first non-competition clause from the indefinite-duration contract, had lapsed with the entry into force of the fixed-term contract entered into by the parties after employee’s state pension age. This fixed-term contract contained a non-solicitation clause. However, the court did not consider this non-solicitation clause to be legally valid as the contract had been entered into after the Work and Security Act came into force and no written justification had been included showing that the clause was necessary due to compelling business or service interests. For that reason, the non-solicitation clause was not legally valid, the preliminary injunction judge said.

There was no unlawful competition, according to the preliminary injunction judge. It was clear that employee did have customer contact and some customers and suppliers had transferred to the new employer, but the five behaviors alleged by the ex-employer did not lead to a structural loss of customers and suppliers in any event, nor was there any systematic purposeful contact with ex-employer’s relationships, nor was there any substantial lasting detriment to the ex-employer’s business flow.

The mere transfer of a number of customers to the new employer, assuming five or fewer, does not sufficiently detract from the business flow since the former employer had approximately 200 customers. Nor were there any additional circumstances. Thus, there was no unlawful competition.

The ex-employer was ordered to lift the precautionary attachment on pain of a penalty and the ex-employer was ordered to pay the legal costs.

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Amsterdam District Court February 15, 2018

Employee’s interests prevailed over employer’s: non-solicitation clause suspended

In this matter, we acted on behalf of the employee to suspend the non-solicitation clause agreed to against the employer.

The non-solicitation clause prevented the employee, who, although 64 years old, still had plenty of job opportunities, from joining companies that were eager to hire him for a year.

The subdistrict court assessed in summary proceedings whether the employee’s non-solicitation clause should be nullified on the grounds that the employee’s interest in nullifying the non-solicitation clause was greater in relation to the employer’s business interest to be protected.

The proceedings were on the cutting edge, as the employer counterclaimed on the grounds that the employee had had contact with the employer’s business associates, which meant that the non-solicitation clause had already been violated and fines would have been forfeited. In accordance with the contentions we made on behalf of the employee, the summary judgment judge made a principled distinction between a non-compete and a non-solicitation clause. A non-solicitation clause does not purport to protect trade secrets. The non-solicitation clause deals with working for relations that puts the employer at a disadvantage in its position in the market. Therefore, the relevant interest of the employer lies in commercially sensitive knowledge and experience that the employee possesses and that he could use with relations of the employer. The fact that the relationships in question were not competitors of the employer made the importance of knowledge of prices and costs somewhat relatable.

Based on this consideration, among others, the subdistrict court ruled in summary proceedings that the agreed-upon non-solicitation clause should be suspended because the interests of the employee took precedence over those of the employer.

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Amsterdam District Court February 20, 2018

Instant dismissal for theft and award of liquidated damages to employer

In this case, we assisted an employer whose Floor Manager had pleaded guilty to stealing cash proceeds and tip money. After a negative cash difference of nearly EUR 7,000 was found, the employee was invited for an interview. He called in sick and remained unreachable for several days. Also, the employee did not respond or hardly responded to calls from the employer for interviews. After failing to attend more than four interviews, the employee was summarily dismissed for culpable acts or omissions (financial malfeasance and repeatedly failing to comply with reasonable or urgent requests by employer to contact and explain cash differences and film footage).

After the instant dismissal given, the employer filed a conditional rescission request. The employee, in turn, requested that the summary dismissal be annulled and sought equitable compensation as well as a transition allowance and back pay and vacation pay.

The subdistrict court ruled that the employer had called the employee for an interview on at least five different days. Since the employee was a manager and on at least one of those five days he had indicated he would come until just before the meeting but then still did not come, the employee had been grossly negligent. The employee should have realized that if the employer invited him to a meeting about missing money, he should make sure he was present at that meeting. Because the employee could not be reached by his employer while there were cash differences that needed to be discussed, there is an urgent reason for immediate dismissal. Application to set aside termination is denied. The employer does not owe any transitional compensation or fair compensation.

Because the summary dismissal stands, the conditional rescission is denied. The court considered that the employer was justified in withholding the liquidated damages.

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Amsterdam District Court 18-12-2017

Employee held to oral notice

In this case, we assisted the employer confronted with an employee who wanted to stop working on two-week notice. The employee, a high-level expat, wanted to be financially compensated for the expiration of the 30% rule (a tax scheme for expats that allows part of the salary to be paid net). When the employer refused, the employee verbally resigned. The employee was unwilling to comply with the one-month notice period. She also wanted to take her vacation days, which would leave her working for only two more weeks. The employer eventually agreed to the early termination date and arrangements were made to transfer the work. Within days, the employee returned to her termination.

The employer held the employee to her notice, released her from work and filed a conditional rescission petition in case the employment contract was not terminated by the notice. Inadvertently, the employer did continue to pay the employee’s wages.

The employee took the position that there was no termination and that her employment contract was still in existence. In the event that the employment contract was dissolved, the employee requested equitable compensation of EUR 320,000.

The district judge ruled that the employee clearly and unambiguously terminated the employment contract. As a result, the employer does not have to continue paying wages and he may recover the cost of the employee’s children’s international school (+ EUR 40,000.– per year).

In addition, the subdistrict court conditionally dissolved the employment contract due to a disturbed working relationship, without awarding any compensation. The employee did not open up about her tax advisor’s advice and left ambiguity about her termination letter. To the CEO, the employee said that the HR Manager had her termination letter and to the HR Manager that the CEO had it. More loyalty should be expected of an employee in a high position.

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Rotterdam District Court 12-10-2017

Study expenses rightly deducted from salary

In this case, we assisted the employer.

The employer had agreed with the employee in a study agreement that the employer would provide the amount of the employee’s study (EUR 3,000.00) as a loan. This amount would be waived one-third for each year the employee was employed after graduation. Three months after the employee completed his degree, he terminated his employment contract. The employer set off the amount of EUR 3,000 against the employee’s salary in two equal parts. The employee claimed (among other things) a declaratory judgment that the study agreement was null and void because the actual costs of the study would be much lower (approximately EUR 1,000.00) and also invoked the principle of equality because colleagues had to pay back less (EUR 1,000.00 instead of EUR 3,000.00). The employee’s claims were rejected by the subdistrict court because summary judgment proceedings do not lend themselves to declaratory judgment. The invocation of the principle of equality was also rejected because the cases were not equal. The district judge ruled that the study costs included in the study agreement were not far out of line with reality if all related costs were included in the calculation. The study agreement had to be complied with and employer was allowed to deduct study costs of EUR 3,000 from wages, even if the employee received only EUR 250 net in salary in the last two months.

For the whole statement kl I h he r.

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Amsterdam District Court 22-09-2017

Payroll taxes owed by employer are subject to final discharge

In this case, we assisted a high-level employee. The employee had entered into a termination agreement with the employer. The arrangements were set out in a settlement agreement.

The employee claimed payment from the employer of the amounts as included in the settlement agreement. In the settlement agreement, the parties agreed to final discharge. After concluding the settlement agreement, the employer discovered that no tax had been paid on an employee’s bonus payment. This bonus had inadvertently been paid to the employee gross instead of net. In counterclaim, the employer claimed offset of the overpayment against the outstanding amounts. The subdistrict court assessed the final discharge using the Haviltex formula and the factual circumstances at the time the settlement agreement was reached and concluded that the tax payment was covered by the final discharge agreed upon by the parties. The district judge dismissed employer’s counterclaim and granted employee’s claims.

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Gelderland District Court 21-07-2017

Instant dismissal for theft and incitement to theft

In this case, we assisted a hospitality employer dealing with a managerial employee who encouraged his subordinate colleagues to take items belonging to the employer. This managerial employee rented a room from the employer. In this house he lived with several subordinate colleagues. During a visit to this residence, the assistant manager found items belonging to the employer, including a substantial amount of food. The employer addressed this to the employees. When it became clear (through WhatsApp and Facebook Messenger messages) that the managerial employee was the one who incited the rest to steal from the employer, the manager was summarily dismissed. The employer also filed charges. The supervisor asked the subdistrict court to annul the summary dismissal and claimed, among other things, wages and admission to his room. In addition, the managing employee filed nine wage claims. The employer asked the subdistrict court to order the managerial employee to pay damages and, in case the dismissal was overturned, to rescind the employment contract. The district judge ruled that the summary dismissal was validly given. However, three of the managerial employee’s nine wage claims were awarded.

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Rotterdam District Court 13-07-2017

Sniffing executive

In this case, we assisted a hospitality employer that demoted an employee to a position (with a stepwise reduction in salary), due to, among other things, drug use during the return trip from a company outing. The employee did not agree to the job change, and he claimed in summary proceedings reinstatement to his former position and payment of his former salary. The employee indicated that the employer should not unilaterally change his position because there was no compelling interest. The employee acknowledged (after previously repeatedly denying it) to have snorted a limited amount of cocaine during the return trip from the company outing. The employee expressed regret about this and never used cocaine while performing his duties or was under the influence during working hours. The district judge ruled that the employee had crossed a clear line. Not only did the employee violate the applicable rules, but his authority was so seriously compromised that he cannot (at this time) return as a manager within the organization. On top of that, the employee did not immediately acknowledge his mistake. This also contributes to a legitimate lack of confidence on the part of the employer in being able to fill a leadership position. This justifies the demotion measure taken. By giving the employee a last chance, the employer more than behaved as a good employer. The employee’s claims were dismissed.

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Order District Court East Brabant 3-11-2016

Dissolution of employment contract after marriage between colleagues breaks down

In this case, we assisted an employee who was married to a co-worker. After the termination of this marriage, employee had called in sick. Employer wished to terminate the employee’s employment contract because of the private situation between the two employees. The employee argued that the requested rescission should be rejected because there was no notice due to illness. If the request was nevertheless granted, the employee requested payment of transitional and equitable compensation, payment of vacation pay and vacations, fulfillment of the life-course savings plan and payment of related amounts. The judge ruled that there was no termination due to illness, but that there was a seriously disturbed relationship, both business and personal. Because the employee’s ex-husband was the only fee-earner at that clinic and was indispensable to employer for that reason, the court dissolved the employee’s employment contract. The judge awarded the severance pay, payment of vacation pay and vacation days, fulfillment of the life-course plan and payment of related amounts. The equitable compensation was rejected because, according to the judge, there was no serious culpability on the part of the employer.

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UWV denies resignation request

Amsterdam Court April 6, 2021

Gelderland District Court Feb. 12, 2021

Dissolution of employment contract due to disrupted working relationship

In this case, we acted for the employer. The case involved a restaurant manager who lied to her employer, left work 30 minutes early, and then secretly retroactively adjusted her working hours to make it look like she did not leave 30 minutes early. This could be demonstrated through the employer’s digital system. The employment contract was dissolved by the court on the grounds of a disrupted relationship subject to 1 month’s notice and the award of the transitional compensation. The fair compensation claimed by the employee was rejected.

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Hague District Court Jan. 13, 2021

Despite commitment, no permanent contract

In this case, we assisted the employer. The employee was employed on April 1, 2019, under a temporary employment contract until Oct. 31, 2019. On Oct. 17, 2019, the employee’s employment contract was extended through Dec. 31, 2019. In doing so, the employer indicated that it would look for a new assignment for the employee effective Jan. 1, 2020. If found, the employee would receive a permanent contract.

On December 4, 2019, the employee informed the director that she had been offered a one-year contract by the account manager, whereas she had been promised a permanent contract. On December 31, 2019, the director responded, “Yes we are going to do it as we agreed. Herewith the confirmation. I will go after account manager.” On Feb. 27, 2020, the account manager indicated that he was told the contract runs until Dec. 31, 2020, and asked her if she received the contract digitally. The employee responded with: “Fine. I’ll hear from you. Thanks in advance.”. On Sept. 2, 2020, the employer sent the employee an annual contract for the period from Jan. 1 to Dec. 31, 2020. On September 9, 2020, the employee’s agent indicated that, according to the employee, a permanent contract had been created. That same morning, however, the employee had signed the annual contract and returned it to the employer.

The parties asked the subdistrict court to determine whether the employment contract in force between the parties had terminated by operation of law as of December 31, 2020 (employer’s position), or whether a contract of indefinite duration had nevertheless been created (employee’s position).

The subdistrict court ruled that the employment contract did indeed end by operation of law on Dec. 31, 2020. The subdistrict court disagreed with employee’s contention that the employer had promised her a permanent contract on Oct. 17, 2019, on the condition that a new assignment had been found by Jan. 1, 2020, which condition, according to employee, had been fulfilled. The employer correctly argued that this offer had not been accepted by the employee and that she had agreed to a one-year contract. The district judge also disagreed with the employee’s contention that the temporary contract entered into before Jan. 1, 2020, had been tacitly continued. Consultations were held on the continuation. This resulted in the employee signing the annual contract. There was no tacit continuation.

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Amsterdam District Court October 7, 2020

Dissolution of employee’s employment contract on e-ground (culpable conduct of employee): no transitional compensation and no notice period

The employer allowed two weeks of summer vacation due to business interests. The employee takes five weeks of summer vacation followed by two weeks of quarantine due to visiting an area with code orange. After two weeks, the employee is summoned several times and then salary payments are completely stopped and a termination request is filed. The court dissolves on the e-ground without awarding transitional compensation and without observing a notice period.

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Rotterdam District Court September 30, 2020

Dissolution for permanently disturbed relationship, fair compensation rejected.

In September, we acted for an employer who had a permanently disturbed relationship with an employee. The employee had committed hours fraud. This did show up in the records, but because there was no footage of it, no summary dismissal could be given.

When the employee was addressed about the hours fraud by the employer, the employee let out a stream of insults and slurs against the employer. Among other things, the employee said to the employer, “you really are a sad case” “then let me see those dirty eyes of yours” “also for that creepy prick sitting next to you” and the employee’s wife topped it off with the comments toward the employer, “you are a pervert” and “you are a very decent man but inside you are rotten.”

Because the employee had previously been addressed for using abusive and insulting language toward colleagues and superiors and he was already on a course of improvement for that reason, among others, the subdistrict court dissolved the employment contract despite the fact that the employee was completely unfit for work. The statutory transitional compensation was awarded, but the equitable compensation claimed by the employee was rejected, even though the employee was 55 years old, incapacitated and claimed to be “unable to return to work.”

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Hague District Court September 4, 2020

Assignment of employee’s wage claim

In this case from September 2020, we acted for an employee who suddenly stopped getting paid anything by the employer. The employer terminated the fixed-term employment contract with the consent of the employee or the subdistrict court/the UWV. In summary proceedings, we requested salary continuation. A settlement was reached on the spot whereby not only the back pay including legal increase and future salary were awarded, but also the full attorney’s fees with a penalty clause of 100% in case of not timely payment.

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Rotterdam District Court May 29, 2020

Employment contract dissolved; claimed equitable compensation rejected

In this case, we assisted the employer.

Employee is wife of the DGA. During the divorce, employer requested dissolution of the employment contract. The dissolution was granted because of a permanently disturbed working relationship. The fair compensation of EUR 150,000 claimed by the employee for (seriously) culpable acts or omissions of the employer was rejected in full. It was dissolved in compliance with the statutory notice period under the award of the transitional compensation.

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Amsterdam District Court March 26, 2020

Employee summarily dismissed for misuse of parking pass

On March 26, 2020, the Amsterdam District Court ruled that the employee was justified in being summarily dismissed for serious breach of trust.

Facts
The employee was employed by the employer as a parking attendant. The employment regulations state that employment is terminated summarily upon gross violation of the employer’s core values. One is acting in confidence, being sincere and transparent.

By letter dated April 9, 2019, the employer issued the employee a warning for damaging employer cameras and allowing unauthorized persons to enter. It stated that a subsequent violation could result in the termination of the employment contract.

On October 23, 2019, the employee was summarily dismissed. Investigation revealed that in the computer system, the pass number of the employee’s parking pass was removed and replaced with the internal pass number. Security was also removed from the employee’s parking pass. On several dates in October 2019, the employee’s parking pass was used to drive in and out of the parking garage while the employee was on sick leave and did not perform any work after Sept. 28, 2019. According to the employer, the employee violated the organization’s core values.

The employee argues that there was no compelling reason for summary dismissal. He indicated that he did not know how to make changes to the system and that a mechanic presumably made the changes in his presence.

Judgment
The subdistrict court does not find it plausible that the employee would not have been able to make the intended changes to the computer system. From the summary submitted by the employer, it can be inferred that the employee could handle the system well. This is confirmed by the testimony of two colleagues. Furthermore, it is impossible to see what interest the outside mechanic would have in making the aforementioned changes to the employee’s pass. Moreover, if what the employee claims were true, he should have reported this to his employer immediately, because he knew, or should have known, that the parking pass could very easily be tampered with after the modifications, which danger has materialized in practice.

According to the subdistrict court, the employee’s actions provide sufficient urgent reason to justify the immediate dismissal given by the employer. The employee violated his obligation to conduct himself as a good employee to such an extent and thereby violated the employer’s trust so seriously that the employer could not reasonably be required to continue the employment contract.

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Amsterdam Court June 25, 2019

Employee not required to give oral notice, does dissolve employment contract

In this appeal, we assisted the employer.

The employer was faced with an employee who wanted to stop working on a two-week notice. The employee, a high-level expat, wanted to be financially compensated for the expiration of the 30% rule (a tax scheme for expats that allows part of the salary to be paid net). When the employer refused, the employee verbally resigned. The employee was unwilling to comply with the one-month notice period. She also wanted to take her vacation days, which would leave her working for only two more weeks. The employer eventually agreed to the early termination date and arrangements were made to transfer the work. Within days, the employee returned to her termination.

The district judge ruled on Dec. 18, 2017, that the employee clearly and unambiguously terminated the employment contract. In addition, the subdistrict court conditionally dissolved the employment contract as of Feb. 1, 2018, due to a disrupted working relationship, without awarding any compensation.

The employee appealed this ruling. The court found that there was no clear and unambiguous notice from the employee. The employee indicated that she wished to terminate the employment contract, but there was no actual termination, according to the court. In addition, the employer should have made the employee aware of the serious consequences of voluntary termination of employment.

The employee argued that the district judge should not have dissolved her employment contract because the district judge ruled that the employee herself had terminated her employment contract. The court disagreed. According to the court, the employer had an interest in its request for dissolution of the employment contract because it could not be ruled out that a different decision would be made on appeal regarding the employee’s termination.

The court determined that the employee’s employment contract continued until Feb. 1, 2018, the date it came to an end through dissolution. Thus, the termination did not hold, but the conditional dissolution by the subdistrict court did.

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The Hague District Court June 18, 2019

Compensation surrendered lease car

In this case, we assisted the employer.

The employee was required to surrender his leased car after six months of disability pursuant to the personnel manual. After the employee turned in the lease car, he claimed compensation in the amount of EUR 934 net per month in summary proceedings because he could no longer use the lease car privately. According to the employee, the use of the leased car was a condition of employment and he was entitled to it even during illness.

Since the personnel guide stated that the employee had to return the leased car after six months of illness and the employee had agreed to this, the subdistrict court ruled that the leased car did not fall within the concept of “wages.” Therefore, the agreement that the right to use the leased car ends after six months of illness does not violate the legal obligation to continue to pay wages during illness.

The employee’s claims were rejected in their entirety.

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Eindhoven District Court May 9, 2019

Claim for back pay

Employee claimed back pay of approximately EUR 6,000 including statutory increase from our client because employee was called up less from a certain point and at a certain point no longer. Because of the client’s reliance on the legal presumption of employment and the incorrect reference period used by the employee, the employee’s claims were rejected in their entirety.

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Rotterdam District Court January 22, 2019

Lifting on suspension

Our client, a 58-year-old commercial director with 38 years of service, was placed on suspension after the employer indicated a desire to terminate the employment contract. Immediately thereafter, client received a draft settlement agreement. In it, he was awarded severance pay and the notice period.

As the reason for the suspension, the employer indicated that it no longer saw a future for the employee within the organization and therefore wanted to terminate the employment contract with him. The employee’s e-mail account was blocked. The employee was no longer allowed to interact with customers, was cut off from intranet. The employer sent an internal and external communication about employee’s absence.

In summary proceedings, the employee claimed reinstatement to his position including all duties, responsibilities and powers on pain of a penalty of EUR 5,000 for each day the employer remained in default.

In addition, the employee demanded access to the ICT systems, his email account, contact information and phone numbers in his phone, intranet and his HR records, also under penalty of a fine. The suspension the employee considered abusive and derogatory.

The subdistrict court held that the fact that the employer had since filed a request for dissolution for the employee in another court on the grounds of dysfunction and a disturbed working relationship plays only a marginal role in summary proceedings. In summary proceedings, the only issue at stake is whether there is a compelling reason to suspend the employee in anticipation of a possible dissolution.

The premise here is that the employee has a legitimate interest in performing the work. The mere fact that the employer wants to terminate the contract is not enough to put an employee on suspension.

The district judge considered that the employer did not have good grounds for suspension. This applied even more heavily, as the employer had waited almost two months to file the petition for dissolution when the suspension had already been given. The employer had not specified what the undesirable situation at work would result from the employee’s return. It is conceivable that immediate colleagues would perceive the return as somewhat uncomfortable. However, this is the direct result of the employer’s decision to immediately suspend the employee and inform colleagues and work associates about it. If at all a difficult atmosphere would develop in the workplace, it is not the employee’s responsibility. That mutual trust has suffered a dent is certain. It cannot be seen that this prevents the employee from returning to work.

The employee had to be returned to work within two days of service of the judgment under penalty of a fine. For the entire verdict: click here.

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East Brabant District Court Nov. 8, 2018

Client very content, lion’s share of claims employee dismissed

In this case, we assisted the employer. The employee petitioned the subdistrict court primarily to reinstate the employment contract between the parties, alternatively for equitable compensation and for payment of salary, in addition to some ancillary requests.

The employee disagreed with the earlier UWV dismissal permit and therefore claimed either reinstatement of employment or equitable compensation. The district judge dismissed those claims with the exception of two weeks’ salary. The employee had not shown up for work despite the employer’s instructions, so the employer had withheld salary for two weeks. The subdistrict court ruled that against the background of an earlier period in which the employee had hardly anything to do in the office, there was sufficient reason for the employee not to appear in the office. However, this concerned only a small part of the employee’s claims.

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Rotterdam District Court September 28, 2018

Instant dismissal for self-enrichment

In this case, we assisted the employer (a hospitality company). The employee (Chief Office F&O) helped an acquaintance (a certain R.) get contracting work with the employer. For this, the employee received a percentage of sales. R. forwarded a large number of WhatsApp messages to the employer’s management. As a result, an interview with the employee took place and he was suspended. Another interview with the employee took place a week later, during which he was summarily dismissed. By letter, the employer confirmed the dismissal to the employee. The grounds for dismissal were as follows: serious conflict of interest, self-enrichment at the expense of (the business relations of) his employer, and gross lack of integrity.

The employee asked the subdistrict court to rule, among other things, that there was no urgent reason for the summary dismissal. The employer requested, among other things, that the employee be ordered to pay EUR 8,932.50, that the employment contract be dissolved in case the employee had not been validly summarily dismissed, and that it be ruled that the employee was not entitled to the transition allowance.

The district judge ruled as follows.

Employee requests
The content of the WhatsApp messages is not tender. This shows that the employee behaved in a manner incompatible with his job. From R.’s explanations, it follows:
(1) that the employee accepted money from R. in return for awarding work;
(2) that the employee maintained close relations with various parties and fed (pricing) information to them;
(3) that the employee had work done in his private residence by contractors who were also active with the employer.

The employee confirmed that he was friends with R. and that he helped him get work with the employer. In addition, the employee confirmed that he received a total of about EUR 40,000 to EUR 45,000 from R. It is understandable that the employee was suspended for the duration of the investigation into the information received. In the face of the employer’s detailed assertions, substantiated by WhatsApp messages and explanations from R., the employee provided little concrete evidence. According to the district judge, there was an impermissible conflict of interest. It has also been established that the employee himself benefited from the award of work. This put the interests of the employer that the employee was supposed to serve in the background.

The subdistrict court ruled that the employee was justified in being summarily dismissed.

Employer requests
By interim order dated July 30, 2018, the employment contract between the parties was terminated effective September 1, 2018. The subdistrict court ruled that the employee acted seriously culpable. Therefore, the employer does not owe the transition fee and the employee owes the employer the fee of EUR 8,932.50.

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Rotterdam District Court September 13, 2018

Instant dismissal for theft of glasses

In this case, we assisted the employer. The employer was contacted by telephone by an employee’s acquaintance. This acquaintance indicated that he went to the employee’s home and found items belonging to the employer there (including bottles of wine and glasses). Thereupon, the employer conducted a bag check. The employee was visibly startled when she saw that a check was being made and twice tried to run away. Upon bag check, the employee was found to have a tray containing six glasses in her bag. The employee was immediately suspended on suspicion of theft. The next day, a conversation took place between the employer and the employee, during which the employee was summarily dismissed.

After the immediate dismissal given, the employer applied to the subdistrict court for a declaratory judgment that the employee was validly dismissed with immediate effect and an award of liquidated damages (which had already been partially offset against the final settlement). The employee in turn sought annulment of the termination, reinstatement and wages or equitable compensation, the compensation due to the irregular termination, paychecks and extrajudicial collection costs.

The employer argued that the employee attempted to take a tray containing six glasses without permission and without payment and that this justified dismissal. In addition, the employer argued that the employee had intentionally or culpably given her an urgent reason for summary dismissal and she therefore owed compensation in the amount of wages for the notice period.

The employee indicated that she did not know that the glasses were in her bag and that she was not validly summarily dismissed because the urgent reason as contained in the dismissal letter was not communicated to her orally. The employer said she was fired because she had the glasses with her during the bag check. The dismissal letter stated the following reason for the dismissal: on several occasions, the employee took home goods belonging to the employer without permission and this is classified as theft.

The employee did not attend the hearing. Since the employee offered no logical explanation for the fact that her bag contained a tray with six glasses belonging to the employer, the subdistrict court assumed that the employee was guilty of theft. It must have been clear to the employee that she was fired because glasses were found in her bag during the bag check.

The district judge ruled that the dismissal was legally valid and awarded liquidated damages.

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Hague Court June 19, 2018

Rotterdam District Court June 22, 2016

Also on appeal: no violation of reinstatement condition

In this case, we assisted an employer who had terminated the employment contract of an employee (“the bailiff”) after receiving permission to do so from the UWV. After a few months, the employer hired two new employees (collection agents), some of whom began performing bailiff work. The bailiff took the position that the employer had violated the reemployment condition, that his employment contract had not been validly terminated, and he claimed wages.

The subdistrict court ruled that the positions of the new employees did not correspond to the bailiff’s former position. Thus, the employer had not violated the reemployment condition, and the bailiff’s claims were dismissed.

The bailiff appealed. The court also found that the work of the two new employees was so different from the bailiff’s previous work that it was not work of the same nature. Thus, there is no violation of the reemployment condition. The court upheld the district judge’s ruling.

For the ruling of the Hague Court of Appeal click here.

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East Brabant District Court March 27, 2018

Counterclaims dismissed, only reduced transitional compensation awarded

In this matter, client Topholding Voergroep Zuid B.V. sought the dissolution of the employment contract with an employee, with the employee defending against the dissolution and also filing a counterclaim.

Among other things, the employee claimed the following:

– a transition allowance of EUR 32,892;
– equitable compensation of EUR 147,560;
– additional compensation in accordance with the Social Statute in the amount of EUR 39,589 or EUR 6,624;
– An untaxed mobility budget of €3,025;
– payment of salary over the full 15-week notice period, without regard to the time the proceedings took, on the grounds that the employer had acted with serious culpability;
– waiver of the relationship clause included in the employment contract;
– declaratory judgment that the employee should be in a higher job scale and therefore entitled to that higher salary;
– Declare that the employee’s salary was EUR 8,922 gross excluding vacation allowance instead of EUR 8,211;
– the statutory increase of 50% on the underpaid salary

The employee’s claims added up to more than EUR 300,000 gross. However, the court only awarded a reduced severance payment of EUR 30,226.05 gross, with an order to pay the employee’s legal costs.

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Gelderland District Court March 21, 2018

Competition and relationship clause not legally valid nor unlawful competition

In this case, we assisted an employee who was held by his former employer to a non-competition clause from an old contract and a non-solicitation clause from a new fixed-term contract. In case both clauses ceased to be legally valid, a claim of unlawful competition was made. The employer had seized the bank accounts of employee and his wife to secure the recovery of employer’s claim.

On behalf of client, we filed and won a dissolution summary action.

The preliminary injunction court ruled that the first non-competition clause from the indefinite-duration contract, had lapsed with the entry into force of the fixed-term contract entered into by the parties after employee’s state pension age. This fixed-term contract contained a non-solicitation clause. However, the court did not consider this non-solicitation clause to be legally valid as the contract had been entered into after the Work and Security Act came into force and no written justification had been included showing that the clause was necessary due to compelling business or service interests. For that reason, the non-solicitation clause was not legally valid, the preliminary injunction judge said.

There was no unlawful competition, according to the preliminary injunction judge. It was clear that employee did have customer contact and some customers and suppliers had transferred to the new employer, but the five behaviors alleged by the ex-employer did not lead to a structural loss of customers and suppliers in any event, nor was there any systematic purposeful contact with ex-employer’s relationships, nor was there any substantial lasting detriment to the ex-employer’s business flow.

The mere transfer of a number of customers to the new employer, assuming five or fewer, does not sufficiently detract from the business flow since the former employer had approximately 200 customers. Nor were there any additional circumstances. Thus, there was no unlawful competition.

The ex-employer was ordered to lift the precautionary attachment on pain of a penalty and the ex-employer was ordered to pay the legal costs.

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Amsterdam District Court February 15, 2018

Employee’s interests prevailed over employer’s: non-solicitation clause suspended

In this matter, we acted on behalf of the employee to suspend the non-solicitation clause agreed to against the employer.

The non-solicitation clause prevented the employee, who, although 64 years old, still had plenty of job opportunities, from joining companies that were eager to hire him for a year.

The subdistrict court assessed in summary proceedings whether the employee’s non-solicitation clause should be nullified on the grounds that the employee’s interest in nullifying the non-solicitation clause was greater in relation to the employer’s business interest to be protected.

The proceedings were on the cutting edge, as the employer counterclaimed on the grounds that the employee had had contact with the employer’s business associates, which meant that the non-solicitation clause had already been violated and fines would have been forfeited. In accordance with the contentions we made on behalf of the employee, the summary judgment judge made a principled distinction between a non-compete and a non-solicitation clause. A non-solicitation clause does not purport to protect trade secrets. The non-solicitation clause deals with working for relations that puts the employer at a disadvantage in its position in the market. Therefore, the relevant interest of the employer lies in commercially sensitive knowledge and experience that the employee possesses and that he could use with relations of the employer. The fact that the relationships in question were not competitors of the employer made the importance of knowledge of prices and costs somewhat relatable.

Based on this consideration, among others, the subdistrict court ruled in summary proceedings that the agreed-upon non-solicitation clause should be suspended because the interests of the employee took precedence over those of the employer.

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Amsterdam District Court February 20, 2018

Instant dismissal for theft and award of liquidated damages to employer

In this case, we assisted an employer whose Floor Manager had pleaded guilty to stealing cash proceeds and tip money. After a negative cash difference of nearly EUR 7,000 was found, the employee was invited for an interview. He called in sick and remained unreachable for several days. Also, the employee did not respond or hardly responded to calls from the employer for interviews. After failing to attend more than four interviews, the employee was summarily dismissed for culpable acts or omissions (financial malfeasance and repeatedly failing to comply with reasonable or urgent requests by employer to contact and explain cash differences and film footage).

After the instant dismissal given, the employer filed a conditional rescission request. The employee, in turn, requested that the summary dismissal be annulled and sought equitable compensation as well as a transition allowance and back pay and vacation pay.

The subdistrict court ruled that the employer had called the employee for an interview on at least five different days. Since the employee was a manager and on at least one of those five days he had indicated he would come until just before the meeting but then still did not come, the employee had been grossly negligent. The employee should have realized that if the employer invited him to a meeting about missing money, he should make sure he was present at that meeting. Because the employee could not be reached by his employer while there were cash differences that needed to be discussed, there is an urgent reason for immediate dismissal. Application to set aside termination is denied. The employer does not owe any transitional compensation or fair compensation.

Because the summary dismissal stands, the conditional rescission is denied. The court considered that the employer was justified in withholding the liquidated damages.

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Amsterdam District Court 18-12-2017

Employee held to oral notice

In this case, we assisted the employer confronted with an employee who wanted to stop working on two-week notice. The employee, a high-level expat, wanted to be financially compensated for the expiration of the 30% rule (a tax scheme for expats that allows part of the salary to be paid net). When the employer refused, the employee verbally resigned. The employee was unwilling to comply with the one-month notice period. She also wanted to take her vacation days, which would leave her working for only two more weeks. The employer eventually agreed to the early termination date and arrangements were made to transfer the work. Within days, the employee returned to her termination.

The employer held the employee to her notice, released her from work and filed a conditional rescission petition in case the employment contract was not terminated by the notice. Inadvertently, the employer did continue to pay the employee’s wages.

The employee took the position that there was no termination and that her employment contract was still in existence. In the event that the employment contract was dissolved, the employee requested equitable compensation of EUR 320,000.

The district judge ruled that the employee clearly and unambiguously terminated the employment contract. As a result, the employer does not have to continue paying wages and he may recover the cost of the employee’s children’s international school (+ EUR 40,000.– per year).

In addition, the subdistrict court conditionally dissolved the employment contract due to a disturbed working relationship, without awarding any compensation. The employee did not open up about her tax advisor’s advice and left ambiguity about her termination letter. To the CEO, the employee said that the HR Manager had her termination letter and to the HR Manager that the CEO had it. More loyalty should be expected of an employee in a high position.

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Rotterdam District Court 12-10-2017

Study expenses rightly deducted from salary

In this case, we assisted the employer.

The employer had agreed with the employee in a study agreement that the employer would provide the amount of the employee’s study (EUR 3,000.00) as a loan. This amount would be waived one-third for each year the employee was employed after graduation. Three months after the employee completed his degree, he terminated his employment contract. The employer set off the amount of EUR 3,000 against the employee’s salary in two equal parts. The employee claimed (among other things) a declaratory judgment that the study agreement was null and void because the actual costs of the study would be much lower (approximately EUR 1,000.00) and also invoked the principle of equality because colleagues had to pay back less (EUR 1,000.00 instead of EUR 3,000.00). The employee’s claims were rejected by the subdistrict court because summary judgment proceedings do not lend themselves to declaratory judgment. The invocation of the principle of equality was also rejected because the cases were not equal. The district judge ruled that the study costs included in the study agreement were not far out of line with reality if all related costs were included in the calculation. The study agreement had to be complied with and employer was allowed to deduct study costs of EUR 3,000 from wages, even if the employee received only EUR 250 net in salary in the last two months.

For the whole statement kl I h he r.

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Amsterdam District Court 22-09-2017

Payroll taxes owed by employer are subject to final discharge

In this case, we assisted a high-level employee. The employee had entered into a termination agreement with the employer. The arrangements were set out in a settlement agreement.

The employee claimed payment from the employer of the amounts as included in the settlement agreement. In the settlement agreement, the parties agreed to final discharge. After concluding the settlement agreement, the employer discovered that no tax had been paid on an employee’s bonus payment. This bonus had inadvertently been paid to the employee gross instead of net. In counterclaim, the employer claimed offset of the overpayment against the outstanding amounts. The subdistrict court assessed the final discharge using the Haviltex formula and the factual circumstances at the time the settlement agreement was reached and concluded that the tax payment was covered by the final discharge agreed upon by the parties. The district judge dismissed employer’s counterclaim and granted employee’s claims.

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Gelderland District Court 21-07-2017

Instant dismissal for theft and incitement to theft

In this case, we assisted a hospitality employer dealing with a managerial employee who encouraged his subordinate colleagues to take items belonging to the employer. This managerial employee rented a room from the employer. In this house he lived with several subordinate colleagues. During a visit to this residence, the assistant manager found items belonging to the employer, including a substantial amount of food. The employer addressed this to the employees. When it became clear (through WhatsApp and Facebook Messenger messages) that the managerial employee was the one who incited the rest to steal from the employer, the manager was summarily dismissed. The employer also filed charges. The supervisor asked the subdistrict court to annul the summary dismissal and claimed, among other things, wages and admission to his room. In addition, the managing employee filed nine wage claims. The employer asked the subdistrict court to order the managerial employee to pay damages and, in case the dismissal was overturned, to rescind the employment contract. The district judge ruled that the summary dismissal was validly given. However, three of the managerial employee’s nine wage claims were awarded.

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Rotterdam District Court 13-07-2017

Sniffing executive

In this case, we assisted a hospitality employer that demoted an employee to a position (with a stepwise reduction in salary), due to, among other things, drug use during the return trip from a company outing. The employee did not agree to the job change, and he claimed in summary proceedings reinstatement to his former position and payment of his former salary. The employee indicated that the employer should not unilaterally change his position because there was no compelling interest. The employee acknowledged (after previously repeatedly denying it) to have snorted a limited amount of cocaine during the return trip from the company outing. The employee expressed regret about this and never used cocaine while performing his duties or was under the influence during working hours. The district judge ruled that the employee had crossed a clear line. Not only did the employee violate the applicable rules, but his authority was so seriously compromised that he cannot (at this time) return as a manager within the organization. On top of that, the employee did not immediately acknowledge his mistake. This also contributes to a legitimate lack of confidence on the part of the employer in being able to fill a leadership position. This justifies the demotion measure taken. By giving the employee a last chance, the employer more than behaved as a good employer. The employee’s claims were dismissed.

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Order District Court East Brabant 3-11-2016

Dissolution of employment contract after marriage between colleagues breaks down

In this case, we assisted an employee who was married to a co-worker. After the termination of this marriage, employee had called in sick. Employer wished to terminate the employee’s employment contract because of the private situation between the two employees. The employee argued that the requested rescission should be rejected because there was no notice due to illness. If the request was nevertheless granted, the employee requested payment of transitional and equitable compensation, payment of vacation pay and vacations, fulfillment of the life-course savings plan and payment of related amounts. The judge ruled that there was no termination due to illness, but that there was a seriously disturbed relationship, both business and personal. Because the employee’s ex-husband was the only fee-earner at that clinic and was indispensable to employer for that reason, the court dissolved the employee’s employment contract. The judge awarded the severance pay, payment of vacation pay and vacation days, fulfillment of the life-course plan and payment of related amounts. The equitable compensation was rejected because, according to the judge, there was no serious culpability on the part of the employer.

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UWV denies resignation request

Amsterdam Court April 6, 2021

Gelderland District Court Feb. 12, 2021

Dissolution of employment contract due to disrupted working relationship

In this case, we acted for the employer. The case involved a restaurant manager who lied to her employer, left work 30 minutes early, and then secretly retroactively adjusted her working hours to make it look like she did not leave 30 minutes early. This could be demonstrated through the employer’s digital system. The employment contract was dissolved by the court on the grounds of a disrupted relationship subject to 1 month’s notice and the award of the transitional compensation. The fair compensation claimed by the employee was rejected.

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Hague District Court Jan. 13, 2021

Despite commitment, no permanent contract

In this case, we assisted the employer. The employee was employed on April 1, 2019, under a temporary employment contract until Oct. 31, 2019. On Oct. 17, 2019, the employee’s employment contract was extended through Dec. 31, 2019. In doing so, the employer indicated that it would look for a new assignment for the employee effective Jan. 1, 2020. If found, the employee would receive a permanent contract.

On December 4, 2019, the employee informed the director that she had been offered a one-year contract by the account manager, whereas she had been promised a permanent contract. On December 31, 2019, the director responded, “Yes we are going to do it as we agreed. Herewith the confirmation. I will go after account manager.” On Feb. 27, 2020, the account manager indicated that he was told the contract runs until Dec. 31, 2020, and asked her if she received the contract digitally. The employee responded with: “Fine. I’ll hear from you. Thanks in advance.”. On Sept. 2, 2020, the employer sent the employee an annual contract for the period from Jan. 1 to Dec. 31, 2020. On September 9, 2020, the employee’s agent indicated that, according to the employee, a permanent contract had been created. That same morning, however, the employee had signed the annual contract and returned it to the employer.

The parties asked the subdistrict court to determine whether the employment contract in force between the parties had terminated by operation of law as of December 31, 2020 (employer’s position), or whether a contract of indefinite duration had nevertheless been created (employee’s position).

The subdistrict court ruled that the employment contract did indeed end by operation of law on Dec. 31, 2020. The subdistrict court disagreed with employee’s contention that the employer had promised her a permanent contract on Oct. 17, 2019, on the condition that a new assignment had been found by Jan. 1, 2020, which condition, according to employee, had been fulfilled. The employer correctly argued that this offer had not been accepted by the employee and that she had agreed to a one-year contract. The district judge also disagreed with the employee’s contention that the temporary contract entered into before Jan. 1, 2020, had been tacitly continued. Consultations were held on the continuation. This resulted in the employee signing the annual contract. There was no tacit continuation.

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Amsterdam District Court October 7, 2020

Dissolution of employee’s employment contract on e-ground (culpable conduct of employee): no transitional compensation and no notice period

The employer allowed two weeks of summer vacation due to business interests. The employee takes five weeks of summer vacation followed by two weeks of quarantine due to visiting an area with code orange. After two weeks, the employee is summoned several times and then salary payments are completely stopped and a termination request is filed. The court dissolves on the e-ground without awarding transitional compensation and without observing a notice period.

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Rotterdam District Court September 30, 2020

Dissolution for permanently disturbed relationship, fair compensation rejected.

In September, we acted for an employer who had a permanently disturbed relationship with an employee. The employee had committed hours fraud. This did show up in the records, but because there was no footage of it, no summary dismissal could be given.

When the employee was addressed about the hours fraud by the employer, the employee let out a stream of insults and slurs against the employer. Among other things, the employee said to the employer, “you really are a sad case” “then let me see those dirty eyes of yours” “also for that creepy prick sitting next to you” and the employee’s wife topped it off with the comments toward the employer, “you are a pervert” and “you are a very decent man but inside you are rotten.”

Because the employee had previously been addressed for using abusive and insulting language toward colleagues and superiors and he was already on a course of improvement for that reason, among others, the subdistrict court dissolved the employment contract despite the fact that the employee was completely unfit for work. The statutory transitional compensation was awarded, but the equitable compensation claimed by the employee was rejected, even though the employee was 55 years old, incapacitated and claimed to be “unable to return to work.”

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Hague District Court September 4, 2020

Assignment of employee’s wage claim

In this case from September 2020, we acted for an employee who suddenly stopped getting paid anything by the employer. The employer terminated the fixed-term employment contract with the consent of the employee or the subdistrict court/the UWV. In summary proceedings, we requested salary continuation. A settlement was reached on the spot whereby not only the back pay including legal increase and future salary were awarded, but also the full attorney’s fees with a penalty clause of 100% in case of not timely payment.

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Rotterdam District Court May 29, 2020

Employment contract dissolved; claimed equitable compensation rejected

In this case, we assisted the employer.

Employee is wife of the DGA. During the divorce, employer requested dissolution of the employment contract. The dissolution was granted because of a permanently disturbed working relationship. The fair compensation of EUR 150,000 claimed by the employee for (seriously) culpable acts or omissions of the employer was rejected in full. It was dissolved in compliance with the statutory notice period under the award of the transitional compensation.

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Amsterdam District Court March 26, 2020

Employee summarily dismissed for misuse of parking pass

On March 26, 2020, the Amsterdam District Court ruled that the employee was justified in being summarily dismissed for serious breach of trust.

Facts
The employee was employed by the employer as a parking attendant. The employment regulations state that employment is terminated summarily upon gross violation of the employer’s core values. One is acting in confidence, being sincere and transparent.

By letter dated April 9, 2019, the employer issued the employee a warning for damaging employer cameras and allowing unauthorized persons to enter. It stated that a subsequent violation could result in the termination of the employment contract.

On October 23, 2019, the employee was summarily dismissed. Investigation revealed that in the computer system, the pass number of the employee’s parking pass was removed and replaced with the internal pass number. Security was also removed from the employee’s parking pass. On several dates in October 2019, the employee’s parking pass was used to drive in and out of the parking garage while the employee was on sick leave and did not perform any work after Sept. 28, 2019. According to the employer, the employee violated the organization’s core values.

The employee argues that there was no compelling reason for summary dismissal. He indicated that he did not know how to make changes to the system and that a mechanic presumably made the changes in his presence.

Judgment
The subdistrict court does not find it plausible that the employee would not have been able to make the intended changes to the computer system. From the summary submitted by the employer, it can be inferred that the employee could handle the system well. This is confirmed by the testimony of two colleagues. Furthermore, it is impossible to see what interest the outside mechanic would have in making the aforementioned changes to the employee’s pass. Moreover, if what the employee claims were true, he should have reported this to his employer immediately, because he knew, or should have known, that the parking pass could very easily be tampered with after the modifications, which danger has materialized in practice.

According to the subdistrict court, the employee’s actions provide sufficient urgent reason to justify the immediate dismissal given by the employer. The employee violated his obligation to conduct himself as a good employee to such an extent and thereby violated the employer’s trust so seriously that the employer could not reasonably be required to continue the employment contract.

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Amsterdam Court June 25, 2019

Employee not required to give oral notice, does dissolve employment contract

In this appeal, we assisted the employer.

The employer was faced with an employee who wanted to stop working on a two-week notice. The employee, a high-level expat, wanted to be financially compensated for the expiration of the 30% rule (a tax scheme for expats that allows part of the salary to be paid net). When the employer refused, the employee verbally resigned. The employee was unwilling to comply with the one-month notice period. She also wanted to take her vacation days, which would leave her working for only two more weeks. The employer eventually agreed to the early termination date and arrangements were made to transfer the work. Within days, the employee returned to her termination.

The district judge ruled on Dec. 18, 2017, that the employee clearly and unambiguously terminated the employment contract. In addition, the subdistrict court conditionally dissolved the employment contract as of Feb. 1, 2018, due to a disrupted working relationship, without awarding any compensation.

The employee appealed this ruling. The court found that there was no clear and unambiguous notice from the employee. The employee indicated that she wished to terminate the employment contract, but there was no actual termination, according to the court. In addition, the employer should have made the employee aware of the serious consequences of voluntary termination of employment.

The employee argued that the district judge should not have dissolved her employment contract because the district judge ruled that the employee herself had terminated her employment contract. The court disagreed. According to the court, the employer had an interest in its request for dissolution of the employment contract because it could not be ruled out that a different decision would be made on appeal regarding the employee’s termination.

The court determined that the employee’s employment contract continued until Feb. 1, 2018, the date it came to an end through dissolution. Thus, the termination did not hold, but the conditional dissolution by the subdistrict court did.

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The Hague District Court June 18, 2019

Compensation surrendered lease car

In this case, we assisted the employer.

The employee was required to surrender his leased car after six months of disability pursuant to the personnel manual. After the employee turned in the lease car, he claimed compensation in the amount of EUR 934 net per month in summary proceedings because he could no longer use the lease car privately. According to the employee, the use of the leased car was a condition of employment and he was entitled to it even during illness.

Since the personnel guide stated that the employee had to return the leased car after six months of illness and the employee had agreed to this, the subdistrict court ruled that the leased car did not fall within the concept of “wages.” Therefore, the agreement that the right to use the leased car ends after six months of illness does not violate the legal obligation to continue to pay wages during illness.

The employee’s claims were rejected in their entirety.

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Eindhoven District Court May 9, 2019

Claim for back pay

Employee claimed back pay of approximately EUR 6,000 including statutory increase from our client because employee was called up less from a certain point and at a certain point no longer. Because of the client’s reliance on the legal presumption of employment and the incorrect reference period used by the employee, the employee’s claims were rejected in their entirety.

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Rotterdam District Court January 22, 2019

Lifting on suspension

Our client, a 58-year-old commercial director with 38 years of service, was placed on suspension after the employer indicated a desire to terminate the employment contract. Immediately thereafter, client received a draft settlement agreement. In it, he was awarded severance pay and the notice period.

As the reason for the suspension, the employer indicated that it no longer saw a future for the employee within the organization and therefore wanted to terminate the employment contract with him. The employee’s e-mail account was blocked. The employee was no longer allowed to interact with customers, was cut off from intranet. The employer sent an internal and external communication about employee’s absence.

In summary proceedings, the employee claimed reinstatement to his position including all duties, responsibilities and powers on pain of a penalty of EUR 5,000 for each day the employer remained in default.

In addition, the employee demanded access to the ICT systems, his email account, contact information and phone numbers in his phone, intranet and his HR records, also under penalty of a fine. The suspension the employee considered abusive and derogatory.

The subdistrict court held that the fact that the employer had since filed a request for dissolution for the employee in another court on the grounds of dysfunction and a disturbed working relationship plays only a marginal role in summary proceedings. In summary proceedings, the only issue at stake is whether there is a compelling reason to suspend the employee in anticipation of a possible dissolution.

The premise here is that the employee has a legitimate interest in performing the work. The mere fact that the employer wants to terminate the contract is not enough to put an employee on suspension.

The district judge considered that the employer did not have good grounds for suspension. This applied even more heavily, as the employer had waited almost two months to file the petition for dissolution when the suspension had already been given. The employer had not specified what the undesirable situation at work would result from the employee’s return. It is conceivable that immediate colleagues would perceive the return as somewhat uncomfortable. However, this is the direct result of the employer’s decision to immediately suspend the employee and inform colleagues and work associates about it. If at all a difficult atmosphere would develop in the workplace, it is not the employee’s responsibility. That mutual trust has suffered a dent is certain. It cannot be seen that this prevents the employee from returning to work.

The employee had to be returned to work within two days of service of the judgment under penalty of a fine. For the entire verdict: click here.

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East Brabant District Court Nov. 8, 2018

Client very content, lion’s share of claims employee dismissed

In this case, we assisted the employer. The employee petitioned the subdistrict court primarily to reinstate the employment contract between the parties, alternatively for equitable compensation and for payment of salary, in addition to some ancillary requests.

The employee disagreed with the earlier UWV dismissal permit and therefore claimed either reinstatement of employment or equitable compensation. The district judge dismissed those claims with the exception of two weeks’ salary. The employee had not shown up for work despite the employer’s instructions, so the employer had withheld salary for two weeks. The subdistrict court ruled that against the background of an earlier period in which the employee had hardly anything to do in the office, there was sufficient reason for the employee not to appear in the office. However, this concerned only a small part of the employee’s claims.

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Rotterdam District Court September 28, 2018

Instant dismissal for self-enrichment

In this case, we assisted the employer (a hospitality company). The employee (Chief Office F&O) helped an acquaintance (a certain R.) get contracting work with the employer. For this, the employee received a percentage of sales. R. forwarded a large number of WhatsApp messages to the employer’s management. As a result, an interview with the employee took place and he was suspended. Another interview with the employee took place a week later, during which he was summarily dismissed. By letter, the employer confirmed the dismissal to the employee. The grounds for dismissal were as follows: serious conflict of interest, self-enrichment at the expense of (the business relations of) his employer, and gross lack of integrity.

The employee asked the subdistrict court to rule, among other things, that there was no urgent reason for the summary dismissal. The employer requested, among other things, that the employee be ordered to pay EUR 8,932.50, that the employment contract be dissolved in case the employee had not been validly summarily dismissed, and that it be ruled that the employee was not entitled to the transition allowance.

The district judge ruled as follows.

Employee requests
The content of the WhatsApp messages is not tender. This shows that the employee behaved in a manner incompatible with his job. From R.’s explanations, it follows:
(1) that the employee accepted money from R. in return for awarding work;
(2) that the employee maintained close relations with various parties and fed (pricing) information to them;
(3) that the employee had work done in his private residence by contractors who were also active with the employer.

The employee confirmed that he was friends with R. and that he helped him get work with the employer. In addition, the employee confirmed that he received a total of about EUR 40,000 to EUR 45,000 from R. It is understandable that the employee was suspended for the duration of the investigation into the information received. In the face of the employer’s detailed assertions, substantiated by WhatsApp messages and explanations from R., the employee provided little concrete evidence. According to the district judge, there was an impermissible conflict of interest. It has also been established that the employee himself benefited from the award of work. This put the interests of the employer that the employee was supposed to serve in the background.

The subdistrict court ruled that the employee was justified in being summarily dismissed.

Employer requests
By interim order dated July 30, 2018, the employment contract between the parties was terminated effective September 1, 2018. The subdistrict court ruled that the employee acted seriously culpable. Therefore, the employer does not owe the transition fee and the employee owes the employer the fee of EUR 8,932.50.

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Rotterdam District Court September 13, 2018

Instant dismissal for theft of glasses

In this case, we assisted the employer. The employer was contacted by telephone by an employee’s acquaintance. This acquaintance indicated that he went to the employee’s home and found items belonging to the employer there (including bottles of wine and glasses). Thereupon, the employer conducted a bag check. The employee was visibly startled when she saw that a check was being made and twice tried to run away. Upon bag check, the employee was found to have a tray containing six glasses in her bag. The employee was immediately suspended on suspicion of theft. The next day, a conversation took place between the employer and the employee, during which the employee was summarily dismissed.

After the immediate dismissal given, the employer applied to the subdistrict court for a declaratory judgment that the employee was validly dismissed with immediate effect and an award of liquidated damages (which had already been partially offset against the final settlement). The employee in turn sought annulment of the termination, reinstatement and wages or equitable compensation, the compensation due to the irregular termination, paychecks and extrajudicial collection costs.

The employer argued that the employee attempted to take a tray containing six glasses without permission and without payment and that this justified dismissal. In addition, the employer argued that the employee had intentionally or culpably given her an urgent reason for summary dismissal and she therefore owed compensation in the amount of wages for the notice period.

The employee indicated that she did not know that the glasses were in her bag and that she was not validly summarily dismissed because the urgent reason as contained in the dismissal letter was not communicated to her orally. The employer said she was fired because she had the glasses with her during the bag check. The dismissal letter stated the following reason for the dismissal: on several occasions, the employee took home goods belonging to the employer without permission and this is classified as theft.

The employee did not attend the hearing. Since the employee offered no logical explanation for the fact that her bag contained a tray with six glasses belonging to the employer, the subdistrict court assumed that the employee was guilty of theft. It must have been clear to the employee that she was fired because glasses were found in her bag during the bag check.

The district judge ruled that the dismissal was legally valid and awarded liquidated damages.

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Hague Court June 19, 2018

Rotterdam District Court June 22, 2016

Also on appeal: no violation of reinstatement condition

In this case, we assisted an employer who had terminated the employment contract of an employee (“the bailiff”) after receiving permission to do so from the UWV. After a few months, the employer hired two new employees (collection agents), some of whom began performing bailiff work. The bailiff took the position that the employer had violated the reemployment condition, that his employment contract had not been validly terminated, and he claimed wages.

The subdistrict court ruled that the positions of the new employees did not correspond to the bailiff’s former position. Thus, the employer had not violated the reemployment condition, and the bailiff’s claims were dismissed.

The bailiff appealed. The court also found that the work of the two new employees was so different from the bailiff’s previous work that it was not work of the same nature. Thus, there is no violation of the reemployment condition. The court upheld the district judge’s ruling.

For the ruling of the Hague Court of Appeal click here.

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East Brabant District Court March 27, 2018

Counterclaims dismissed, only reduced transitional compensation awarded

In this matter, client Topholding Voergroep Zuid B.V. sought the dissolution of the employment contract with an employee, with the employee defending against the dissolution and also filing a counterclaim.

Among other things, the employee claimed the following:

– a transition allowance of EUR 32,892;
– equitable compensation of EUR 147,560;
– additional compensation in accordance with the Social Statute in the amount of EUR 39,589 or EUR 6,624;
– An untaxed mobility budget of €3,025;
– payment of salary over the full 15-week notice period, without regard to the time the proceedings took, on the grounds that the employer had acted with serious culpability;
– waiver of the relationship clause included in the employment contract;
– declaratory judgment that the employee should be in a higher job scale and therefore entitled to that higher salary;
– Declare that the employee’s salary was EUR 8,922 gross excluding vacation allowance instead of EUR 8,211;
– the statutory increase of 50% on the underpaid salary

The employee’s claims added up to more than EUR 300,000 gross. However, the court only awarded a reduced severance payment of EUR 30,226.05 gross, with an order to pay the employee’s legal costs.

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Gelderland District Court March 21, 2018

Competition and relationship clause not legally valid nor unlawful competition

In this case, we assisted an employee who was held by his former employer to a non-competition clause from an old contract and a non-solicitation clause from a new fixed-term contract. In case both clauses ceased to be legally valid, a claim of unlawful competition was made. The employer had seized the bank accounts of employee and his wife to secure the recovery of employer’s claim.

On behalf of client, we filed and won a dissolution summary action.

The preliminary injunction court ruled that the first non-competition clause from the indefinite-duration contract, had lapsed with the entry into force of the fixed-term contract entered into by the parties after employee’s state pension age. This fixed-term contract contained a non-solicitation clause. However, the court did not consider this non-solicitation clause to be legally valid as the contract had been entered into after the Work and Security Act came into force and no written justification had been included showing that the clause was necessary due to compelling business or service interests. For that reason, the non-solicitation clause was not legally valid, the preliminary injunction judge said.

There was no unlawful competition, according to the preliminary injunction judge. It was clear that employee did have customer contact and some customers and suppliers had transferred to the new employer, but the five behaviors alleged by the ex-employer did not lead to a structural loss of customers and suppliers in any event, nor was there any systematic purposeful contact with ex-employer’s relationships, nor was there any substantial lasting detriment to the ex-employer’s business flow.

The mere transfer of a number of customers to the new employer, assuming five or fewer, does not sufficiently detract from the business flow since the former employer had approximately 200 customers. Nor were there any additional circumstances. Thus, there was no unlawful competition.

The ex-employer was ordered to lift the precautionary attachment on pain of a penalty and the ex-employer was ordered to pay the legal costs.

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Amsterdam District Court February 15, 2018

Employee’s interests prevailed over employer’s: non-solicitation clause suspended

In this matter, we acted on behalf of the employee to suspend the non-solicitation clause agreed to against the employer.

The non-solicitation clause prevented the employee, who, although 64 years old, still had plenty of job opportunities, from joining companies that were eager to hire him for a year.

The subdistrict court assessed in summary proceedings whether the employee’s non-solicitation clause should be nullified on the grounds that the employee’s interest in nullifying the non-solicitation clause was greater in relation to the employer’s business interest to be protected.

The proceedings were on the cutting edge, as the employer counterclaimed on the grounds that the employee had had contact with the employer’s business associates, which meant that the non-solicitation clause had already been violated and fines would have been forfeited. In accordance with the contentions we made on behalf of the employee, the summary judgment judge made a principled distinction between a non-compete and a non-solicitation clause. A non-solicitation clause does not purport to protect trade secrets. The non-solicitation clause deals with working for relations that puts the employer at a disadvantage in its position in the market. Therefore, the relevant interest of the employer lies in commercially sensitive knowledge and experience that the employee possesses and that he could use with relations of the employer. The fact that the relationships in question were not competitors of the employer made the importance of knowledge of prices and costs somewhat relatable.

Based on this consideration, among others, the subdistrict court ruled in summary proceedings that the agreed-upon non-solicitation clause should be suspended because the interests of the employee took precedence over those of the employer.

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Amsterdam District Court February 20, 2018

Instant dismissal for theft and award of liquidated damages to employer

In this case, we assisted an employer whose Floor Manager had pleaded guilty to stealing cash proceeds and tip money. After a negative cash difference of nearly EUR 7,000 was found, the employee was invited for an interview. He called in sick and remained unreachable for several days. Also, the employee did not respond or hardly responded to calls from the employer for interviews. After failing to attend more than four interviews, the employee was summarily dismissed for culpable acts or omissions (financial malfeasance and repeatedly failing to comply with reasonable or urgent requests by employer to contact and explain cash differences and film footage).

After the instant dismissal given, the employer filed a conditional rescission request. The employee, in turn, requested that the summary dismissal be annulled and sought equitable compensation as well as a transition allowance and back pay and vacation pay.

The subdistrict court ruled that the employer had called the employee for an interview on at least five different days. Since the employee was a manager and on at least one of those five days he had indicated he would come until just before the meeting but then still did not come, the employee had been grossly negligent. The employee should have realized that if the employer invited him to a meeting about missing money, he should make sure he was present at that meeting. Because the employee could not be reached by his employer while there were cash differences that needed to be discussed, there is an urgent reason for immediate dismissal. Application to set aside termination is denied. The employer does not owe any transitional compensation or fair compensation.

Because the summary dismissal stands, the conditional rescission is denied. The court considered that the employer was justified in withholding the liquidated damages.

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Amsterdam District Court 18-12-2017

Employee held to oral notice

In this case, we assisted the employer confronted with an employee who wanted to stop working on two-week notice. The employee, a high-level expat, wanted to be financially compensated for the expiration of the 30% rule (a tax scheme for expats that allows part of the salary to be paid net). When the employer refused, the employee verbally resigned. The employee was unwilling to comply with the one-month notice period. She also wanted to take her vacation days, which would leave her working for only two more weeks. The employer eventually agreed to the early termination date and arrangements were made to transfer the work. Within days, the employee returned to her termination.

The employer held the employee to her notice, released her from work and filed a conditional rescission petition in case the employment contract was not terminated by the notice. Inadvertently, the employer did continue to pay the employee’s wages.

The employee took the position that there was no termination and that her employment contract was still in existence. In the event that the employment contract was dissolved, the employee requested equitable compensation of EUR 320,000.

The district judge ruled that the employee clearly and unambiguously terminated the employment contract. As a result, the employer does not have to continue paying wages and he may recover the cost of the employee’s children’s international school (+ EUR 40,000.– per year).

In addition, the subdistrict court conditionally dissolved the employment contract due to a disturbed working relationship, without awarding any compensation. The employee did not open up about her tax advisor’s advice and left ambiguity about her termination letter. To the CEO, the employee said that the HR Manager had her termination letter and to the HR Manager that the CEO had it. More loyalty should be expected of an employee in a high position.

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Rotterdam District Court 12-10-2017

Study expenses rightly deducted from salary

In this case, we assisted the employer.

The employer had agreed with the employee in a study agreement that the employer would provide the amount of the employee’s study (EUR 3,000.00) as a loan. This amount would be waived one-third for each year the employee was employed after graduation. Three months after the employee completed his degree, he terminated his employment contract. The employer set off the amount of EUR 3,000 against the employee’s salary in two equal parts. The employee claimed (among other things) a declaratory judgment that the study agreement was null and void because the actual costs of the study would be much lower (approximately EUR 1,000.00) and also invoked the principle of equality because colleagues had to pay back less (EUR 1,000.00 instead of EUR 3,000.00). The employee’s claims were rejected by the subdistrict court because summary judgment proceedings do not lend themselves to declaratory judgment. The invocation of the principle of equality was also rejected because the cases were not equal. The district judge ruled that the study costs included in the study agreement were not far out of line with reality if all related costs were included in the calculation. The study agreement had to be complied with and employer was allowed to deduct study costs of EUR 3,000 from wages, even if the employee received only EUR 250 net in salary in the last two months.

For the whole statement kl I h he r.

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Amsterdam District Court 22-09-2017

Payroll taxes owed by employer are subject to final discharge

In this case, we assisted a high-level employee. The employee had entered into a termination agreement with the employer. The arrangements were set out in a settlement agreement.

The employee claimed payment from the employer of the amounts as included in the settlement agreement. In the settlement agreement, the parties agreed to final discharge. After concluding the settlement agreement, the employer discovered that no tax had been paid on an employee’s bonus payment. This bonus had inadvertently been paid to the employee gross instead of net. In counterclaim, the employer claimed offset of the overpayment against the outstanding amounts. The subdistrict court assessed the final discharge using the Haviltex formula and the factual circumstances at the time the settlement agreement was reached and concluded that the tax payment was covered by the final discharge agreed upon by the parties. The district judge dismissed employer’s counterclaim and granted employee’s claims.

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Gelderland District Court 21-07-2017

Instant dismissal for theft and incitement to theft

In this case, we assisted a hospitality employer dealing with a managerial employee who encouraged his subordinate colleagues to take items belonging to the employer. This managerial employee rented a room from the employer. In this house he lived with several subordinate colleagues. During a visit to this residence, the assistant manager found items belonging to the employer, including a substantial amount of food. The employer addressed this to the employees. When it became clear (through WhatsApp and Facebook Messenger messages) that the managerial employee was the one who incited the rest to steal from the employer, the manager was summarily dismissed. The employer also filed charges. The supervisor asked the subdistrict court to annul the summary dismissal and claimed, among other things, wages and admission to his room. In addition, the managing employee filed nine wage claims. The employer asked the subdistrict court to order the managerial employee to pay damages and, in case the dismissal was overturned, to rescind the employment contract. The district judge ruled that the summary dismissal was validly given. However, three of the managerial employee’s nine wage claims were awarded.

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Rotterdam District Court 13-07-2017

Sniffing executive

In this case, we assisted a hospitality employer that demoted an employee to a position (with a stepwise reduction in salary), due to, among other things, drug use during the return trip from a company outing. The employee did not agree to the job change, and he claimed in summary proceedings reinstatement to his former position and payment of his former salary. The employee indicated that the employer should not unilaterally change his position because there was no compelling interest. The employee acknowledged (after previously repeatedly denying it) to have snorted a limited amount of cocaine during the return trip from the company outing. The employee expressed regret about this and never used cocaine while performing his duties or was under the influence during working hours. The district judge ruled that the employee had crossed a clear line. Not only did the employee violate the applicable rules, but his authority was so seriously compromised that he cannot (at this time) return as a manager within the organization. On top of that, the employee did not immediately acknowledge his mistake. This also contributes to a legitimate lack of confidence on the part of the employer in being able to fill a leadership position. This justifies the demotion measure taken. By giving the employee a last chance, the employer more than behaved as a good employer. The employee’s claims were dismissed.

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Order District Court East Brabant 3-11-2016

Dissolution of employment contract after marriage between colleagues breaks down

In this case, we assisted an employee who was married to a co-worker. After the termination of this marriage, employee had called in sick. Employer wished to terminate the employee’s employment contract because of the private situation between the two employees. The employee argued that the requested rescission should be rejected because there was no notice due to illness. If the request was nevertheless granted, the employee requested payment of transitional and equitable compensation, payment of vacation pay and vacations, fulfillment of the life-course savings plan and payment of related amounts. The judge ruled that there was no termination due to illness, but that there was a seriously disturbed relationship, both business and personal. Because the employee’s ex-husband was the only fee-earner at that clinic and was indispensable to employer for that reason, the court dissolved the employee’s employment contract. The judge awarded the severance pay, payment of vacation pay and vacation days, fulfillment of the life-course plan and payment of related amounts. The equitable compensation was rejected because, according to the judge, there was no serious culpability on the part of the employer.

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Amsterdam District Court October 7, 2020

Dissolution of employee’s employment contract on e-ground (culpable conduct of employee): no transitional compensation and no notice period

The employer allowed two weeks of summer vacation due to business interests. The employee takes five weeks of summer vacation followed by two weeks of quarantine due to visiting an area with code orange. After two weeks, the employee is summoned several times and then salary payments are completely stopped and a termination request is filed. The court dissolves on the e-ground without awarding transitional compensation and without observing a notice period.

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Rotterdam District Court September 30, 2020

Dissolution for permanently disturbed relationship, fair compensation rejected.

In September, we acted for an employer who had a permanently disturbed relationship with an employee. The employee had committed hours fraud. This did show up in the records, but because there was no footage of it, no summary dismissal could be given.

When the employee was addressed about the hours fraud by the employer, the employee let out a stream of insults and slurs against the employer. Among other things, the employee said to the employer, “you really are a sad case” “then let me see those dirty eyes of yours” “also for that creepy prick sitting next to you” and the employee’s wife topped it off with the comments toward the employer, “you are a pervert” and “you are a very decent man but inside you are rotten.”

Because the employee had previously been addressed for using abusive and insulting language toward colleagues and superiors and he was already on a course of improvement for that reason, among others, the subdistrict court dissolved the employment contract despite the fact that the employee was completely unfit for work. The statutory transitional compensation was awarded, but the equitable compensation claimed by the employee was rejected, even though the employee was 55 years old, incapacitated and claimed to be “unable to return to work.”

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Hague District Court September 4, 2020

Assignment of employee’s wage claim

In this case from September 2020, we acted for an employee who suddenly stopped getting paid anything by the employer. The employer terminated the fixed-term employment contract with the consent of the employee or the subdistrict court/the UWV. In summary proceedings, we requested salary continuation. A settlement was reached on the spot whereby not only the back pay including legal increase and future salary were awarded, but also the full attorney’s fees with a penalty clause of 100% in case of not timely payment.

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Rotterdam District Court May 29, 2020

Employment contract dissolved; claimed equitable compensation rejected

In this case, we assisted the employer.

Employee is wife of the DGA. During the divorce, employer requested dissolution of the employment contract. The dissolution was granted because of a permanently disturbed working relationship. The fair compensation of EUR 150,000 claimed by the employee for (seriously) culpable acts or omissions of the employer was rejected in full. It was dissolved in compliance with the statutory notice period under the award of the transitional compensation.

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Amsterdam District Court March 26, 2020

Employee summarily dismissed for misuse of parking pass

On March 26, 2020, the Amsterdam District Court ruled that the employee was justified in being summarily dismissed for serious breach of trust.

Facts
The employee was employed by the employer as a parking attendant. The employment regulations state that employment is terminated summarily upon gross violation of the employer’s core values. One is acting in confidence, being sincere and transparent.

By letter dated April 9, 2019, the employer issued the employee a warning for damaging employer cameras and allowing unauthorized persons to enter. It stated that a subsequent violation could result in the termination of the employment contract.

On October 23, 2019, the employee was summarily dismissed. Investigation revealed that in the computer system, the pass number of the employee’s parking pass was removed and replaced with the internal pass number. Security was also removed from the employee’s parking pass. On several dates in October 2019, the employee’s parking pass was used to drive in and out of the parking garage while the employee was on sick leave and did not perform any work after Sept. 28, 2019. According to the employer, the employee violated the organization’s core values.

The employee argues that there was no compelling reason for summary dismissal. He indicated that he did not know how to make changes to the system and that a mechanic presumably made the changes in his presence.

Judgment
The subdistrict court does not find it plausible that the employee would not have been able to make the intended changes to the computer system. From the summary submitted by the employer, it can be inferred that the employee could handle the system well. This is confirmed by the testimony of two colleagues. Furthermore, it is impossible to see what interest the outside mechanic would have in making the aforementioned changes to the employee’s pass. Moreover, if what the employee claims were true, he should have reported this to his employer immediately, because he knew, or should have known, that the parking pass could very easily be tampered with after the modifications, which danger has materialized in practice.

According to the subdistrict court, the employee’s actions provide sufficient urgent reason to justify the immediate dismissal given by the employer. The employee violated his obligation to conduct himself as a good employee to such an extent and thereby violated the employer’s trust so seriously that the employer could not reasonably be required to continue the employment contract.

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Amsterdam Court June 25, 2019

Employee not required to give oral notice, does dissolve employment contract

In this appeal, we assisted the employer.

The employer was faced with an employee who wanted to stop working on a two-week notice. The employee, a high-level expat, wanted to be financially compensated for the expiration of the 30% rule (a tax scheme for expats that allows part of the salary to be paid net). When the employer refused, the employee verbally resigned. The employee was unwilling to comply with the one-month notice period. She also wanted to take her vacation days, which would leave her working for only two more weeks. The employer eventually agreed to the early termination date and arrangements were made to transfer the work. Within days, the employee returned to her termination.

The district judge ruled on Dec. 18, 2017, that the employee clearly and unambiguously terminated the employment contract. In addition, the subdistrict court conditionally dissolved the employment contract as of Feb. 1, 2018, due to a disrupted working relationship, without awarding any compensation.

The employee appealed this ruling. The court found that there was no clear and unambiguous notice from the employee. The employee indicated that she wished to terminate the employment contract, but there was no actual termination, according to the court. In addition, the employer should have made the employee aware of the serious consequences of voluntary termination of employment.

The employee argued that the district judge should not have dissolved her employment contract because the district judge ruled that the employee herself had terminated her employment contract. The court disagreed. According to the court, the employer had an interest in its request for dissolution of the employment contract because it could not be ruled out that a different decision would be made on appeal regarding the employee’s termination.

The court determined that the employee’s employment contract continued until Feb. 1, 2018, the date it came to an end through dissolution. Thus, the termination did not hold, but the conditional dissolution by the subdistrict court did.

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The Hague District Court June 18, 2019

Compensation surrendered lease car

In this case, we assisted the employer.

The employee was required to surrender his leased car after six months of disability pursuant to the personnel manual. After the employee turned in the lease car, he claimed compensation in the amount of EUR 934 net per month in summary proceedings because he could no longer use the lease car privately. According to the employee, the use of the leased car was a condition of employment and he was entitled to it even during illness.

Since the personnel guide stated that the employee had to return the leased car after six months of illness and the employee had agreed to this, the subdistrict court ruled that the leased car did not fall within the concept of “wages.” Therefore, the agreement that the right to use the leased car ends after six months of illness does not violate the legal obligation to continue to pay wages during illness.

The employee’s claims were rejected in their entirety.

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Eindhoven District Court May 9, 2019

Claim for back pay

Employee claimed back pay of approximately EUR 6,000 including statutory increase from our client because employee was called up less from a certain point and at a certain point no longer. Because of the client’s reliance on the legal presumption of employment and the incorrect reference period used by the employee, the employee’s claims were rejected in their entirety.

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Rotterdam District Court January 22, 2019

Lifting on suspension

Our client, a 58-year-old commercial director with 38 years of service, was placed on suspension after the employer indicated a desire to terminate the employment contract. Immediately thereafter, client received a draft settlement agreement. In it, he was awarded severance pay and the notice period.

As the reason for the suspension, the employer indicated that it no longer saw a future for the employee within the organization and therefore wanted to terminate the employment contract with him. The employee’s e-mail account was blocked. The employee was no longer allowed to interact with customers, was cut off from intranet. The employer sent an internal and external communication about employee’s absence.

In summary proceedings, the employee claimed reinstatement to his position including all duties, responsibilities and powers on pain of a penalty of EUR 5,000 for each day the employer remained in default.

In addition, the employee demanded access to the ICT systems, his email account, contact information and phone numbers in his phone, intranet and his HR records, also under penalty of a fine. The suspension the employee considered abusive and derogatory.

The subdistrict court held that the fact that the employer had since filed a request for dissolution for the employee in another court on the grounds of dysfunction and a disturbed working relationship plays only a marginal role in summary proceedings. In summary proceedings, the only issue at stake is whether there is a compelling reason to suspend the employee in anticipation of a possible dissolution.

The premise here is that the employee has a legitimate interest in performing the work. The mere fact that the employer wants to terminate the contract is not enough to put an employee on suspension.

The district judge considered that the employer did not have good grounds for suspension. This applied even more heavily, as the employer had waited almost two months to file the petition for dissolution when the suspension had already been given. The employer had not specified what the undesirable situation at work would result from the employee’s return. It is conceivable that immediate colleagues would perceive the return as somewhat uncomfortable. However, this is the direct result of the employer’s decision to immediately suspend the employee and inform colleagues and work associates about it. If at all a difficult atmosphere would develop in the workplace, it is not the employee’s responsibility. That mutual trust has suffered a dent is certain. It cannot be seen that this prevents the employee from returning to work.

The employee had to be returned to work within two days of service of the judgment under penalty of a fine. For the entire verdict: click here.

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East Brabant District Court Nov. 8, 2018

Client very content, lion’s share of claims employee dismissed

In this case, we assisted the employer. The employee petitioned the subdistrict court primarily to reinstate the employment contract between the parties, alternatively for equitable compensation and for payment of salary, in addition to some ancillary requests.

The employee disagreed with the earlier UWV dismissal permit and therefore claimed either reinstatement of employment or equitable compensation. The district judge dismissed those claims with the exception of two weeks’ salary. The employee had not shown up for work despite the employer’s instructions, so the employer had withheld salary for two weeks. The subdistrict court ruled that against the background of an earlier period in which the employee had hardly anything to do in the office, there was sufficient reason for the employee not to appear in the office. However, this concerned only a small part of the employee’s claims.

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Rotterdam District Court September 28, 2018

Instant dismissal for self-enrichment

In this case, we assisted the employer (a hospitality company). The employee (Chief Office F&O) helped an acquaintance (a certain R.) get contracting work with the employer. For this, the employee received a percentage of sales. R. forwarded a large number of WhatsApp messages to the employer’s management. As a result, an interview with the employee took place and he was suspended. Another interview with the employee took place a week later, during which he was summarily dismissed. By letter, the employer confirmed the dismissal to the employee. The grounds for dismissal were as follows: serious conflict of interest, self-enrichment at the expense of (the business relations of) his employer, and gross lack of integrity.

The employee asked the subdistrict court to rule, among other things, that there was no urgent reason for the summary dismissal. The employer requested, among other things, that the employee be ordered to pay EUR 8,932.50, that the employment contract be dissolved in case the employee had not been validly summarily dismissed, and that it be ruled that the employee was not entitled to the transition allowance.

The district judge ruled as follows.

Employee requests
The content of the WhatsApp messages is not tender. This shows that the employee behaved in a manner incompatible with his job. From R.’s explanations, it follows:
(1) that the employee accepted money from R. in return for awarding work;
(2) that the employee maintained close relations with various parties and fed (pricing) information to them;
(3) that the employee had work done in his private residence by contractors who were also active with the employer.

The employee confirmed that he was friends with R. and that he helped him get work with the employer. In addition, the employee confirmed that he received a total of about EUR 40,000 to EUR 45,000 from R. It is understandable that the employee was suspended for the duration of the investigation into the information received. In the face of the employer’s detailed assertions, substantiated by WhatsApp messages and explanations from R., the employee provided little concrete evidence. According to the district judge, there was an impermissible conflict of interest. It has also been established that the employee himself benefited from the award of work. This put the interests of the employer that the employee was supposed to serve in the background.

The subdistrict court ruled that the employee was justified in being summarily dismissed.

Employer requests
By interim order dated July 30, 2018, the employment contract between the parties was terminated effective September 1, 2018. The subdistrict court ruled that the employee acted seriously culpable. Therefore, the employer does not owe the transition fee and the employee owes the employer the fee of EUR 8,932.50.

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Rotterdam District Court September 13, 2018

Instant dismissal for theft of glasses

In this case, we assisted the employer. The employer was contacted by telephone by an employee’s acquaintance. This acquaintance indicated that he went to the employee’s home and found items belonging to the employer there (including bottles of wine and glasses). Thereupon, the employer conducted a bag check. The employee was visibly startled when she saw that a check was being made and twice tried to run away. Upon bag check, the employee was found to have a tray containing six glasses in her bag. The employee was immediately suspended on suspicion of theft. The next day, a conversation took place between the employer and the employee, during which the employee was summarily dismissed.

After the immediate dismissal given, the employer applied to the subdistrict court for a declaratory judgment that the employee was validly dismissed with immediate effect and an award of liquidated damages (which had already been partially offset against the final settlement). The employee in turn sought annulment of the termination, reinstatement and wages or equitable compensation, the compensation due to the irregular termination, paychecks and extrajudicial collection costs.

The employer argued that the employee attempted to take a tray containing six glasses without permission and without payment and that this justified dismissal. In addition, the employer argued that the employee had intentionally or culpably given her an urgent reason for summary dismissal and she therefore owed compensation in the amount of wages for the notice period.

The employee indicated that she did not know that the glasses were in her bag and that she was not validly summarily dismissed because the urgent reason as contained in the dismissal letter was not communicated to her orally. The employer said she was fired because she had the glasses with her during the bag check. The dismissal letter stated the following reason for the dismissal: on several occasions, the employee took home goods belonging to the employer without permission and this is classified as theft.

The employee did not attend the hearing. Since the employee offered no logical explanation for the fact that her bag contained a tray with six glasses belonging to the employer, the subdistrict court assumed that the employee was guilty of theft. It must have been clear to the employee that she was fired because glasses were found in her bag during the bag check.

The district judge ruled that the dismissal was legally valid and awarded liquidated damages.

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Hague Court June 19, 2018

Rotterdam District Court June 22, 2016

Also on appeal: no violation of reinstatement condition

In this case, we assisted an employer who had terminated the employment contract of an employee (“the bailiff”) after receiving permission to do so from the UWV. After a few months, the employer hired two new employees (collection agents), some of whom began performing bailiff work. The bailiff took the position that the employer had violated the reemployment condition, that his employment contract had not been validly terminated, and he claimed wages.

The subdistrict court ruled that the positions of the new employees did not correspond to the bailiff’s former position. Thus, the employer had not violated the reemployment condition, and the bailiff’s claims were dismissed.

The bailiff appealed. The court also found that the work of the two new employees was so different from the bailiff’s previous work that it was not work of the same nature. Thus, there is no violation of the reemployment condition. The court upheld the district judge’s ruling.

For the ruling of the Hague Court of Appeal click here.

For the ruling of the Rotterdam District Court click here.

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East Brabant District Court March 27, 2018

Counterclaims dismissed, only reduced transitional compensation awarded

In this matter, client Topholding Voergroep Zuid B.V. sought the dissolution of the employment contract with an employee, with the employee defending against the dissolution and also filing a counterclaim.

Among other things, the employee claimed the following:

– a transition allowance of EUR 32,892;
– equitable compensation of EUR 147,560;
– additional compensation in accordance with the Social Statute in the amount of EUR 39,589 or EUR 6,624;
– An untaxed mobility budget of €3,025;
– payment of salary over the full 15-week notice period, without regard to the time the proceedings took, on the grounds that the employer had acted with serious culpability;
– waiver of the relationship clause included in the employment contract;
– declaratory judgment that the employee should be in a higher job scale and therefore entitled to that higher salary;
– Declare that the employee’s salary was EUR 8,922 gross excluding vacation allowance instead of EUR 8,211;
– the statutory increase of 50% on the underpaid salary

The employee’s claims added up to more than EUR 300,000 gross. However, the court only awarded a reduced severance payment of EUR 30,226.05 gross, with an order to pay the employee’s legal costs.

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Gelderland District Court March 21, 2018

Competition and relationship clause not legally valid nor unlawful competition

In this case, we assisted an employee who was held by his former employer to a non-competition clause from an old contract and a non-solicitation clause from a new fixed-term contract. In case both clauses ceased to be legally valid, a claim of unlawful competition was made. The employer had seized the bank accounts of employee and his wife to secure the recovery of employer’s claim.

On behalf of client, we filed and won a dissolution summary action.

The preliminary injunction court ruled that the first non-competition clause from the indefinite-duration contract, had lapsed with the entry into force of the fixed-term contract entered into by the parties after employee’s state pension age. This fixed-term contract contained a non-solicitation clause. However, the court did not consider this non-solicitation clause to be legally valid as the contract had been entered into after the Work and Security Act came into force and no written justification had been included showing that the clause was necessary due to compelling business or service interests. For that reason, the non-solicitation clause was not legally valid, the preliminary injunction judge said.

There was no unlawful competition, according to the preliminary injunction judge. It was clear that employee did have customer contact and some customers and suppliers had transferred to the new employer, but the five behaviors alleged by the ex-employer did not lead to a structural loss of customers and suppliers in any event, nor was there any systematic purposeful contact with ex-employer’s relationships, nor was there any substantial lasting detriment to the ex-employer’s business flow.

The mere transfer of a number of customers to the new employer, assuming five or fewer, does not sufficiently detract from the business flow since the former employer had approximately 200 customers. Nor were there any additional circumstances. Thus, there was no unlawful competition.

The ex-employer was ordered to lift the precautionary attachment on pain of a penalty and the ex-employer was ordered to pay the legal costs.

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Amsterdam District Court February 15, 2018

Employee’s interests prevailed over employer’s: non-solicitation clause suspended

In this matter, we acted on behalf of the employee to suspend the non-solicitation clause agreed to against the employer.

The non-solicitation clause prevented the employee, who, although 64 years old, still had plenty of job opportunities, from joining companies that were eager to hire him for a year.

The subdistrict court assessed in summary proceedings whether the employee’s non-solicitation clause should be nullified on the grounds that the employee’s interest in nullifying the non-solicitation clause was greater in relation to the employer’s business interest to be protected.

The proceedings were on the cutting edge, as the employer counterclaimed on the grounds that the employee had had contact with the employer’s business associates, which meant that the non-solicitation clause had already been violated and fines would have been forfeited. In accordance with the contentions we made on behalf of the employee, the summary judgment judge made a principled distinction between a non-compete and a non-solicitation clause. A non-solicitation clause does not purport to protect trade secrets. The non-solicitation clause deals with working for relations that puts the employer at a disadvantage in its position in the market. Therefore, the relevant interest of the employer lies in commercially sensitive knowledge and experience that the employee possesses and that he could use with relations of the employer. The fact that the relationships in question were not competitors of the employer made the importance of knowledge of prices and costs somewhat relatable.

Based on this consideration, among others, the subdistrict court ruled in summary proceedings that the agreed-upon non-solicitation clause should be suspended because the interests of the employee took precedence over those of the employer.

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Amsterdam District Court February 20, 2018

Instant dismissal for theft and award of liquidated damages to employer

In this case, we assisted an employer whose Floor Manager had pleaded guilty to stealing cash proceeds and tip money. After a negative cash difference of nearly EUR 7,000 was found, the employee was invited for an interview. He called in sick and remained unreachable for several days. Also, the employee did not respond or hardly responded to calls from the employer for interviews. After failing to attend more than four interviews, the employee was summarily dismissed for culpable acts or omissions (financial malfeasance and repeatedly failing to comply with reasonable or urgent requests by employer to contact and explain cash differences and film footage).

After the instant dismissal given, the employer filed a conditional rescission request. The employee, in turn, requested that the summary dismissal be annulled and sought equitable compensation as well as a transition allowance and back pay and vacation pay.

The subdistrict court ruled that the employer had called the employee for an interview on at least five different days. Since the employee was a manager and on at least one of those five days he had indicated he would come until just before the meeting but then still did not come, the employee had been grossly negligent. The employee should have realized that if the employer invited him to a meeting about missing money, he should make sure he was present at that meeting. Because the employee could not be reached by his employer while there were cash differences that needed to be discussed, there is an urgent reason for immediate dismissal. Application to set aside termination is denied. The employer does not owe any transitional compensation or fair compensation.

Because the summary dismissal stands, the conditional rescission is denied. The court considered that the employer was justified in withholding the liquidated damages.

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Amsterdam District Court 18-12-2017

Employee held to oral notice

In this case, we assisted the employer confronted with an employee who wanted to stop working on two-week notice. The employee, a high-level expat, wanted to be financially compensated for the expiration of the 30% rule (a tax scheme for expats that allows part of the salary to be paid net). When the employer refused, the employee verbally resigned. The employee was unwilling to comply with the one-month notice period. She also wanted to take her vacation days, which would leave her working for only two more weeks. The employer eventually agreed to the early termination date and arrangements were made to transfer the work. Within days, the employee returned to her termination.

The employer held the employee to her notice, released her from work and filed a conditional rescission petition in case the employment contract was not terminated by the notice. Inadvertently, the employer did continue to pay the employee’s wages.

The employee took the position that there was no termination and that her employment contract was still in existence. In the event that the employment contract was dissolved, the employee requested equitable compensation of EUR 320,000.

The district judge ruled that the employee clearly and unambiguously terminated the employment contract. As a result, the employer does not have to continue paying wages and he may recover the cost of the employee’s children’s international school (+ EUR 40,000.– per year).

In addition, the subdistrict court conditionally dissolved the employment contract due to a disturbed working relationship, without awarding any compensation. The employee did not open up about her tax advisor’s advice and left ambiguity about her termination letter. To the CEO, the employee said that the HR Manager had her termination letter and to the HR Manager that the CEO had it. More loyalty should be expected of an employee in a high position.

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Rotterdam District Court 12-10-2017

Study expenses rightly deducted from salary

In this case, we assisted the employer.

The employer had agreed with the employee in a study agreement that the employer would provide the amount of the employee’s study (EUR 3,000.00) as a loan. This amount would be waived one-third for each year the employee was employed after graduation. Three months after the employee completed his degree, he terminated his employment contract. The employer set off the amount of EUR 3,000 against the employee’s salary in two equal parts. The employee claimed (among other things) a declaratory judgment that the study agreement was null and void because the actual costs of the study would be much lower (approximately EUR 1,000.00) and also invoked the principle of equality because colleagues had to pay back less (EUR 1,000.00 instead of EUR 3,000.00). The employee’s claims were rejected by the subdistrict court because summary judgment proceedings do not lend themselves to declaratory judgment. The invocation of the principle of equality was also rejected because the cases were not equal. The district judge ruled that the study costs included in the study agreement were not far out of line with reality if all related costs were included in the calculation. The study agreement had to be complied with and employer was allowed to deduct study costs of EUR 3,000 from wages, even if the employee received only EUR 250 net in salary in the last two months.

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Amsterdam District Court 22-09-2017

Payroll taxes owed by employer are subject to final discharge

In this case, we assisted a high-level employee. The employee had entered into a termination agreement with the employer. The arrangements were set out in a settlement agreement.

The employee claimed payment from the employer of the amounts as included in the settlement agreement. In the settlement agreement, the parties agreed to final discharge. After concluding the settlement agreement, the employer discovered that no tax had been paid on an employee’s bonus payment. This bonus had inadvertently been paid to the employee gross instead of net. In counterclaim, the employer claimed offset of the overpayment against the outstanding amounts. The subdistrict court assessed the final discharge using the Haviltex formula and the factual circumstances at the time the settlement agreement was reached and concluded that the tax payment was covered by the final discharge agreed upon by the parties. The district judge dismissed employer’s counterclaim and granted employee’s claims.

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Gelderland District Court 21-07-2017

Instant dismissal for theft and incitement to theft

In this case, we assisted a hospitality employer dealing with a managerial employee who encouraged his subordinate colleagues to take items belonging to the employer. This managerial employee rented a room from the employer. In this house he lived with several subordinate colleagues. During a visit to this residence, the assistant manager found items belonging to the employer, including a substantial amount of food. The employer addressed this to the employees. When it became clear (through WhatsApp and Facebook Messenger messages) that the managerial employee was the one who incited the rest to steal from the employer, the manager was summarily dismissed. The employer also filed charges. The supervisor asked the subdistrict court to annul the summary dismissal and claimed, among other things, wages and admission to his room. In addition, the managing employee filed nine wage claims. The employer asked the subdistrict court to order the managerial employee to pay damages and, in case the dismissal was overturned, to rescind the employment contract. The district judge ruled that the summary dismissal was validly given. However, three of the managerial employee’s nine wage claims were awarded.

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Rotterdam District Court 13-07-2017

Sniffing executive

In this case, we assisted a hospitality employer that demoted an employee to a position (with a stepwise reduction in salary), due to, among other things, drug use during the return trip from a company outing. The employee did not agree to the job change, and he claimed in summary proceedings reinstatement to his former position and payment of his former salary. The employee indicated that the employer should not unilaterally change his position because there was no compelling interest. The employee acknowledged (after previously repeatedly denying it) to have snorted a limited amount of cocaine during the return trip from the company outing. The employee expressed regret about this and never used cocaine while performing his duties or was under the influence during working hours. The district judge ruled that the employee had crossed a clear line. Not only did the employee violate the applicable rules, but his authority was so seriously compromised that he cannot (at this time) return as a manager within the organization. On top of that, the employee did not immediately acknowledge his mistake. This also contributes to a legitimate lack of confidence on the part of the employer in being able to fill a leadership position. This justifies the demotion measure taken. By giving the employee a last chance, the employer more than behaved as a good employer. The employee’s claims were dismissed.

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Order District Court East Brabant 3-11-2016

Dissolution of employment contract after marriage between colleagues breaks down

In this case, we assisted an employee who was married to a co-worker. After the termination of this marriage, employee had called in sick. Employer wished to terminate the employee’s employment contract because of the private situation between the two employees. The employee argued that the requested rescission should be rejected because there was no notice due to illness. If the request was nevertheless granted, the employee requested payment of transitional and equitable compensation, payment of vacation pay and vacations, fulfillment of the life-course savings plan and payment of related amounts. The judge ruled that there was no termination due to illness, but that there was a seriously disturbed relationship, both business and personal. Because the employee’s ex-husband was the only fee-earner at that clinic and was indispensable to employer for that reason, the court dissolved the employee’s employment contract. The judge awarded the severance pay, payment of vacation pay and vacation days, fulfillment of the life-course plan and payment of related amounts. The equitable compensation was rejected because, according to the judge, there was no serious culpability on the part of the employer.

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Order of the District Court of The Hague 10-03-2016

Disrupted relationship

In this case, we assisted the employer. The employer had filed an application for dissolution with the subdistrict court. There was a disturbed working relationship between her and the employee. Reassignment was also no longer possible. The employee acknowledged that there was a disturbed relationship and also saw no possibilities for reassignment. Because the parties agreed that the disruption was irreparable, the subdistrict court dissolved the employment contract without awarding compensation to the employee, which was agreed upon by the parties at the hearing.

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Rotterdam District Court Order 11-03-2016

Dissolution due to disturbed relationships

In this case, we had filed a rescission petition on behalf of the employer for a disrupted employment relationship. The employee defended against the dissolution but could not deny that the employment relationship was disturbed. The district judge dissolved the employment contract because of a disturbed working relationship. The parties had reached an arrangement at the hearing in which it was agreed that employee would be released from work until the termination date with pay and that no compensation would be payable to employee.

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Rotterdam District Court 18-03-2016

Absence of expert testimony causes dismissal of claim

In this case, we assisted the employer.

One employee reported suffering from his wrists and said he no longer wanted to work. In response, the employer stopped scheduling the employee, and paid an amount of salary until the end date of his employment contract and a notice penalty. The employee claimed payment of wages for the period during which he did not work. In this regard, the employee did not submit an expert statement showing that he could not work. This is a legal requirement. The district judge rejected the employee’s claims. The employer no longer had to pay anything extra to the employee.

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UWV 22-04-2016 Decision on dismissal request.

V&D bankruptcy reason for dismissal by employer operating in this store

In this case, we assisted an employer who operated corners in V&D stores.

Due to the bankruptcy of V&D, the employer was forced to cease operating corners in this store. The employer applied to the UWV for a termination permit for her employee, who was working as a corner manager. The employee had refused the employer’s offer to perform the position of salesman in another establishment. The UWV ruled that the various positions in the organization were not interchangeable and that there were no redeployment options other than the offer already made to the employee. The UWV granted the employer permission to dismiss the employee.

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Rotterdam District Court 22-07-2016 (ECLI:NL:RBROT:2016:5516)

No violation of reemployment condition by employer

In this case, we assisted an employer who had terminated an employee’s employment contract after receiving permission to do so from the UWV. After a few months, the employer hired two new employees. The employee whose employment contract had been terminated took the position that the employer violated the reemployment condition and claimed wages for the months since his dismissal. The district judge ruled that the positions of the new employees did not match the employee’s position. Thus, the employer had not violated the reemployment condition and the employee’s claims were dismissed.

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Rotterdam District Court 06-09-2016

Reintegration obligation and other obligations have been properly fulfilled by employer

In this case, we assisted an employer who had validly terminated an employee’s employment contract. The employee then claimed, among other things, fair compensation. She took the position that the employer had acted seriously culpable by failing to fulfill its reintegration obligations and not doing enough to reduce the psychosocial workload at work. The subdistrict court ruled that the employer had sufficiently fulfilled its reintegration obligations and could not be expected to do more than it had already done. The district judge rejected all of the employee’s claims.

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Rotterdam District Court 19-10-2016

No voluntary termination of employment contract by employee

In this case, we assisted an employee working in a family business.

The employee, after being informed that he would not be allowed to take over his parents’ business, had said on a whim that he no longer wanted to work for his employer. The employer had interpreted this comment as a termination of the employment contract. The employee was already reported sick at this time. The employee claimed continued pay and reinstatement. The district judge ruled that, given the circumstances of the case, the employee did not seek termination of the employment contract and granted continued payment of wages. The subdistrict court rejected the reinstatement, given the very poor relationship between the parties. The employee continued to receive pay during his period of illness.

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Rotterdam District Court 27-10-2016 (ECLI:NL:RBROT:2016:10121)

Unauthorized termination during probationary period creates void termination of partnership agreement

In this case, we assisted a physician who worked in a hospital and had joined a physician’s partnership associated with the hospital as a mate. The partnership terminated the physician’s partnership agreement during the probationary period. The doctor claimed admission to his usual duties and continued payment of his monthly compensation. The court ruled that the decision to terminate the doctor’s employment contract was made by an unauthorized body. Thus, the termination was void and the probationary period was now over. That the partnership had tried to remedy the defects after the probationary period expired did not make this different. The doctor’s claims were granted and he remained with the partnership. We then reached a settlement on behalf of the doctor.

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Rotterdam District Court 22-12-2016

Transfer of business by insourcing administration?

In this case, we assisted a group of employees who were employed by foundation A. They believed that they would become employees of foundation B through a transfer of undertaking at the time that B would insource the services provided by foundation A, namely providing basic, personnel, salary and financial administration. The subdistrict court ruled that there was indeed a transfer of undertaking because the activities remained (virtually) the same, the software was transferred, this software was to be enriched with the employees’ know-how, the customer base remained the same and there was no interruption of activities. As a result, the employees joined Foundation B by operation of law.

On appeal, the court unfortunately ruled otherwise.

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Hague District Court 28-12-2016

Backtracking after an appointment made is not allowed

In this case, we assisted an individual who owned a business with an acquaintance. Client had informed his associate that he wanted to sell his shares in the joint venture. The parties then agreed in an email exchange, that the associate would take over client’s shares and for what amount. Subsequently, the partner wished to abandon the sale as he did not have sufficient financial resources. Client claimed fulfillment of the agreements made. The court ruled that a share purchase and delivery agreement had been reached between the parties. The former associate had to comply and the shares were sold.

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Order Court of The Hague 13-08-2015

Dissolved by default

In this case, we assisted an employer who had filed a petition to dissolve the employment contract. The employee was properly summoned to appear at the hearing, but did not appear. Nor had he responded to the petition in writing. The court therefore granted the request for dissolution as unopposed and based on law.

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UWV 21-09-2015 Decision on dismissal request.

Business termination due to disappointing results

In this case, we assisted a theater that was forced to close the cafe it operated near one of its theaters. The theater wished to terminate the employment contracts with the employees working in this café, including for the employee in question, who was working as an assistant manager. There were no opportunities for the theater to reassign the employee. The UWV considered the decision to terminate the business understandable. There were also no opportunities for the employee’s reinstatement. The UWV granted the theater permission for the dismissal.

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Rotterdam District Court 31-08-2015

Instant dismissal after theft

In this case, we assisted a restaurant dealing with an employee who had stolen the day’s earnings.

The employer summarily dismissed this employee. The employer then filed a request for dissolution of the employment contract in case the given dismissal was overturned and claimed damages. The subdistrict court dissolved the employee’s employment contract for culpable conduct, without awarding any transition compensation. Compensation to the employer was also awarded by the district judge.

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Limburg District Court 23-12-2015

Final discharge is final discharge, employer must pay double pension contributions

In this case, we assisted an employee who worked in Brazil.

His employer had to pay double pension contributions because of Brazilian law. The employment contract provided that the employee had to repay these premiums upon leaving Brazil. As a result of a disrupted employment relationship, the parties had entered into a settlement agreement in which they granted each other final discharge. They had not agreed on the double pension contributions in the settlement agreement. Later, the employer improperly offset the double pension contributions against the employee’s termination payment. The subdistrict court ruled that the double pension contribution agreements were also covered by the final discharge. Thus, the employee was entitled to his entire termination pay and the withheld portion had to be paid by the employer.

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