Summary dismissal

What if an employee steals from his employer? Or if he commits fraud? Or comes to work drunk? The employer might wish to get rid of this employee immediately. Such serious offenses may be considered urgent reasons which allow the employer to fire his employee with immediate effect. This is called summary dismissal. But employers need to be careful; the Dutch courts are strict when confronted with the question of whether summary dismissal was indeed permitted. 

Urgent reason

The first requirement for summary dismissal is the existence of an urgent reason. Without an urgent reason, summary dismissal is not permitted and the employer will have to resort to regular ways of ending the employment contract like termination or via a settlement agreement. 

In order for the employee’s behaviour or negligence to constitute an urgent reason, his behaviour or negligence should represent such a serious offense that the employer cannot reasonably be required to let the employment contract continue. The law provides a few suggestions, including theft or fraud, gross insults towards the employer and those connected to him and gross negligence towards his duties. In the end, whether the behaviour or negligence constitutes an urgent reason, depends on the circumstances of the case. This may for example lead a judge to rule that in the specific circumstances of the case, theft does not constitute an urgent reason.

Questions that the employer can consider to determine whether there is an urgent reason include:

  • Has the employee been employed with the employer for a long time?
  • Has the employee always performed well before the incident?
  • What kind of behaviour is usual for their position? For example, in some positions it is normal to use profanity. 
  • What kind of impact would summary dismissal have on the personal life of the employee? 
  • What was the employee’s emotional state at the time of the incident? Were they acting like themselves?
  • Has the employee been warned about their behaviour or negligence before?
  • Are there any (written) rules concerning the specific behaviour/negligence?

Dismissal without delay

A second requirement is that the employer should fire the employee for the urgent reason without delay. It is permitted and in certain cases even recommended to take some time to research the behaviour or negligence before firing the employee after the urgent reason comes to light. How much time depends on the circumstances of the case. A suspicion of fraud might require more research than the situation in which the employer saw the employee steal something with his own eyes. 

Letter of dismissal

The employer has to  confirm the reason for summary dismissal via a letter of dismissal to the employee. The employee must be able to use the letter of dismissal to defend against the summary dismissal. If the employee disagrees with summary dismissal and takes the case to court, the judge will use this letter to determine the urgent reason. Therefore, it is important to be very careful with the wording and content of this letter. Everything in it will have to be proven by the employer. 

What to do against summary dismissal?

The employee can go to court within two months after the summary dismissal took place to ask the judge to declare the summary dismissal void. If they succeed, the employee’s employment contract never ended and salary is owed over the months that have passed, unless the employer has for example terminated the employment contract in the meantime. 

The employee has a second option. If they do not want to remain employed with the employer, they can request fair compensation for unjust summary dismissal. The amount of fair compensation may differ immensely per case.