1.2.2020

Chronicle e-ground: from unwillingness to dismissal, what's allowed?

An employer may terminate the employment contract on the basis of culpable acts or omissions of an employee, such that the employer cannot reasonably be required to allow the employment contract to continue, according to Section 7:669 (1) jo. (3) under e of the Civil Code. This so-called e-ground, like the other reasonable grounds for dismissal, is derived from the Dismissal Decree and the UWV Policy Rules, as they applied until July 1, 2015. An exception, of course, is the combination ground, which was added to Section 7:669(3) of the Civil Code as of January 1, 2020. In the old UWV Policy Rules, the current e-ground was described as an urgent reason-light. Summary dismissal is an extreme remedy and may only be used if the employer cannot reasonably be required to continue the employment contract, even during dissolution proceedings. According to the UWV Policy Rules, culpable acts or omissions do not have to be so serious as to justify summary dismissal, but rather termination of the employment contract in due course. This comparison between the urgent reason and culpable acts or omissions is somewhat more nuanced, the Supreme Court (also recently) considered; culpability of the employee is in fact not a requirement for the existence of an urgent reason.

Among the examples of culpable acts or omissions mentioned in the UWV Policy Rules were: unlawful absenteeism, refusing to carry out an assignment and regularly being late. The UWV Policy Rules clearly distinguished this ground for dismissal from the ground for dysfunction. Thus, in most cases the distinction coincides with the distinction between incompetence or impotence (dysfunction) on the one hand and unwillingness or wantonness (culpable act or omission) on the other.

During the parliamentary discussion of the Wwz, culpable acts or omissions were again discussed at length. According to the legislator, it is in principle up to the employer to assess whether the culpable act or omission constitutes grounds for dismissal. However, the subdistrict court will assess whether the employer could reasonably have reached the decision...

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