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Obtaining a certificate of good conduct as resolutive condition in employment contract

Obtaining a certificate of good conduct as resolutive condition in employment contract

The inclusion of a resolutive condition in an employment contract is intended to ensure that the employment contract ends by operation of law at the moment the resolutive condition is fulfilled, without an act of termination (dismissal or termination) being required.

The Dutch Supreme Court has already repeatedly determined that the inclusion of a resolutive condition in an employment contract is possible under certain circumstances. The circumstances consist of three cumulative or non-cumulative elements. Firstly, when a resolutive condition is included in an employment contract, no conflict may arise with the framework of the law on dismissal. For instance, if the employment contract includes the provision that it will end if an employee becomes ill, a conflict with the framework of the law on dismissal exists. Secondly, the fulfilment of the resolutive condition must objectively be determined and therefore not be dependent upon the will or the subjective assessment of one party. For example, if it is agreed that the employment contract ends in the event the employee performs inadequately, whereby the unsatisfactory performance is assessed by the employer, a condition exists that is dependent upon the will and subjective assessment of a party, specifically the employer. Finally, after the resolutive condition has been fulfilled, the employment contract may no longer be given content. In the lower courts, many decisions are rendered on the legal validity of various resolutive conditions. It emerges from this that the lower courts usually test whether the first two elements have been satisfied. The third element often continues to be underemphasised or barely tested in practice.

Does the condition that the employment contract will end by operation of law if a certificate of good conduct (CGC) is not obtained meet the requirements that the Supreme Court sets? If the first element is reviewed, it can be argued that this element does not provide any problems. If the second element is reviewed, it can be argued that obtaining the CGC is not dependent upon the will of a party. After all, neither the employer nor the employee has any control over the matter. In fact, it is the Dutch Ministry of Security and Justice that determines whether a CGC will be issued. In other words, the second element does not form an obstacle either. For some professions (such as lawyers, taxi drivers and teachers), obtaining a CGC is required by law, so that no work may or can be performed without one. For these professions, it can be argued that the employment contract may not be given any content if the relevant employee cannot obtain a CGC. In that case, after all, it is not permitted for this employee to practise his profession. For professions for which obtaining a CGC is not required by law, but is deemed desirable by the employer, the question is whether the last element is satisfied. After all, without the CGC the employee can also perform his duties. However, it is simply not desirable that the employee does so, but that is a different test altogether. An employer must be prepared for this. This circumspection, however, forms in my opinion no reason for not including a resolutive condition. Indeed, it is evident from the lower courts that this last element does not produce any minor or major problem, as long as justification can be given for the desirability of a CGC.

The wording of the CGC as a resolutive condition [in the employment contract] must be formulated precisely and its entry into force must be closely monitored for the purpose of avoiding a ruling that it was not duly agreed after all. This is evident from a judgment of the Delft sub-district court (11 July 2011, Sub-District Court 2012-0029). In this case, it concerned an employee who had taken up his duties as a group leader on 15 March 2010. Dutch law does not make a CGC mandatory for this profession. It had been stipulated in the employment contract that the employee had to dispose of a CGC and that the employment contract would end by operation of law if the CGC were refused, if the employee did not cooperate enough with the application for a CGC, or if the CGC were not issued within a standard period of time. After having demanded several times in vain for the CGC to be handed over, the employer decided at a random moment to let the employment contract end by operation of law per 30 May 2011. The sub-district court decided that the second element was not satisfied because it was not clear when the employee did not cooperate enough with the application for a CGC or when the standard period of time for obtaining the CGC had elapsed, while the employer himself had also stipulated when the resolutive condition entered into effect. Therefore, things went wrong for the employer due to the formulation of the resolutive condition and due to the fact that the employer himself stipulated when that condition entered into effect. The third element was also not tested in this case in spite of the fact that the employee had given content to the employment contract without a CGC. Eventually, the Delft sub-district court (11 August 2011, Sub-District Court 2012-0030) did terminate the employment contract, without granting compensation on the basis of breach of trust and the circumstance that not obtaining the CGC lies within the employee’s risk scope. In the termination proceedings, however, the sub-district court did discuss the question as to whether the CGC was necessary for the proper performance of the job of group leader to justify the termination, since the employee had performed his duties without any problems and without a CGC. The sub-district court decided in brief that the employer was permitted to reasonably make obtaining the CGC a condition for the proper performance of the job of group leader due to the vulnerable and dependent group of clients with which the employee worked and the extra responsibilities that the employer as a result thereof has to be accountable for vis-à-vis these clients and their family members.

All in all, it can be established that obtaining a CGC as a resolutive condition is very much worth the effort, also in respect of professions for which no CGC is required by law, whereby the formulation and the entry into effect thereof must be monitored. It is advisable in that context to include that a CGC must be obtained prior to a specific date. The specific date must be stated. At the moment the CGC cannot be obtained for any reason whatsoever, the employment contract will end by operation of law. That being said, it is important in that situation to not let the employee continue working and not to give him/her the opportunity to still obtain a CGC, because the termination by operation of law will then be determined by the employer (after all, the termination by operation of law will then be postponed by the actions of the employer), which means the second element will not be satisfied. This does not affect the fact that a termination can in that case still be realised by means of a termination (with the consent of UWV WERKbedrijf, the administrative office for employed persons insurance schemes) or a setting aside thereof (by the sub-district court).

Thuy Nguyen-van der Klift

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