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Termination after UWV dismissal proceedings; is the door ajar once again?

Termination after UWV dismissal proceedings; is the door ajar once again?

Since the ruling of the Supreme Court of 11 December 2009 (Van Hooff Elektra), a request for termination by the employee during the period of notice still only has limited effect. According to the Supreme Court, an employment contract remains valid only for a limited period of time as a result of the notice, so that the requested termination can only have effect for that limited period of time, which also applies to the possible severance pay. Requesting a termination for the purpose of avoiding manifestly unreasonable dismissal proceedings was for that reason in principle no longer possible after this ruling. However, in a case that was recently handled at the Utrecht sub-district court, the employee was successful nonetheless.

In this case, it concerned an employee who was employed at a financial services provider. The employee worked in fact for one client and also performed all his duties there. At a certain point in time, the employer stopped offering specific financial services, as a result of which the employee was no longer able to perform his duties for the client. The parties then entered into consultations to arrive at a solution. The employee’s counsel had given written notice that if no solution were arrived at, he would shortly initiate proceedings on behalf of the employee.

The employer then submitted an application for a dismissal to UWV WERKbedrijf, the administrative office for employed persons insurance schemes. This application was granted, after which the employer terminated the employment contract with due observance of the notice period. One week after the submission of the application for dismissal, the employee initiated termination proceedings. By the time this application was handled, the employer had already obtained a dismissal permit and terminated the employment contract with due observance of a 2-month notice period.

According to the Utrecht sub-district court, the case law of the Dutch Supreme Court from December 2009 (Van Hooff Elektra) was not applicable to this case, given that the employee had already announced a couple of months beforehand, that is to say prior to the submission of the application for dismissal, via his counsel that he would initiate legal proceedings if the parties would not arrive at a solution. According to the sub-district court, it should have been reasonably clear to the employer that the counsel meant by this, among other things, a request for termination of the employment contract. Consequently, the sub-district court processed the submitted request for termination in its entirety and granted the employee total compensation of C= 1.25.

It could be argued that as a result of this ruling the door has once again been opened for employees to apply for termination during on-going UWV proceedings. In my opinion, however, this conclusion is still a bit too premature. I will be keen to find out whether other sub-district courts will follow the judgment of the Utrecht sub-district court. I will keep you abreast of developments.

Renate Peijs-Schoester

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