Four Tips on how to Prevent the Nullification of Dismissal

Giving a summary dismissal is an ultimum remedium and the most severe sanction in employment law. When there is an urgent reason, the employer can terminate the employment contract with immediate effect. However, a summary dismissal is not without risks for the employer. The employer must be able to demonstrate that there is an urgent reason. Furthermore, the dismissal must be given without delay (without unnecessary waiting) and the reason for the dismissal must also be communicated to the employee (without delay). The employee must know why they are being dismissed immediately.

In practice, Emilie van der Lans and Nikki Volmer from Wessel Van der Lans Advocaten see that it sometimes goes wrong with the formulation of the urgent reason, causing an employer to still have to pay wages to an employee who was summarily dismissed. They therefore discuss a recent ruling on this matter and provide four tips for a proper dismissal letter.

Misconduct by Influencer Marketing Manager?

The Influencer Marketing Manager started employment on October 7, 2020 at a European branding platform. On February 5, 2021, the employee is summarily dismissed. In the dismissal letter, the employer describes the employee’s behavior that led to the dismissal as follows: the employee is not functioning, does not show up to work, does not collaborate with colleagues, is often unreachable, does not meet targets, repeatedly fails to follow instructions, and during an online meeting threatened colleagues, insulted them, and made them feel unsafe. In short, quite a list of reasons to show someone the door immediately.

Nevertheless, the subdistrict court nullifies the summary dismissal. The fact is that the communication to the employee must clearly indicate which behaviors are the reason for the dismissal. In the situation of the Influencer Marketing Manager, the employer gave multiple reasons in the dismissal letter, but indicated in the proceedings that the misconduct during the online meeting was the actual urgent reason for the dismissal. However, the subdistrict court rules that this is not sufficiently clear from the communication made to the employee. The letter did not state, for example, that the behaviors together and each individually would constitute an urgent reason. The employer had also only described the alleged behaviors in general terms and insufficiently substantiated them.

How should it be Done?

The summary dismissal is assessed by the court based on the communication (the dismissal letter). It is therefore important that the communication is accurate and complete. Therefore, four tips for a proper dismissal letter:

Tip 1: Do not underestimate the communication. Pay extra attention to the dismissal letter, but ensure that the dismissal is given without delay.

Tip 2: If there are multiple behaviors underlying the summary dismissal, make it clear that these reasons are each individually sufficient reason for summary dismissal.

Tip 3: Describe the behavior(s) that constitute(s) the urgent reason for dismissal accurately. Merely general terms such as: ‘aggressive, intimidating and threatening behavior’ are insufficiently clear. Specify as much as possible where, when and how certain behavior occurred.

Tip 4: Be certain of your case. Because you as employer assert the urgent reason, you must also be able to prove it in proceedings. Therefore ensure that, when it comes down to it, the behavior(s) can be proven.

Bonus tip: Because the circumstances of the case are never the same, it is advisable to seek legal advice before drafting the communication for summary dismissal.

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