The Subdistrict Court of Almere has awarded the creative director of Talpa a fair compensation of more than one million Euro. So far, the counter for the highest fair compensation granted since the introduction of the WWZ (the Dutch Work and Security Act) was on €628,000. Talpa has committed a seriously culpable act by suspending the creative director instead of offering him an adequate improvement process.
The facts
The creative director had been employed by Talpa since 2011. He was eligible for a profit distribution of more than 3 million Euro. This distribution was paid in instalments. The condition for the entitlement to a partial payment is that the employee is still employed. From 2017 onwards, the performance of the creative director was criticized. Talpa was dissatisfied with his performance and had too little confidence in him. His performance was referred to as “pathetic”. As of 6 October 2016 the creative director was suspended. He initiated preliminary relief proceedings and claimed reinstatement. The Subdistrict Court decided in favour of the creative director: Talpa had not called him to account sufficiently in terms of his performance and had not taken sufficient measures to bring his performance up to the required level.
Rescission of the employment agreement
After the preliminary relief proceedings Talpa set up an improvement process. After three months, however, the performance had not improved and there was commotion within the team. The creative director dropped out due to a burnout. A short time after he reported his recovery, Talpa requested the rescission of the employment agreement due to a damaged working relationship.
Seriously culpable act
The Subdistrict Court of Alkmaar rescinded the employment agreement. The employment relationship would be so disturbed that the parties reached a point where they could no longer work together and there was no prospect of a solution. The creative director was awarded a fair compensation due to Talpa's seriously culpable acts. By immediately suspending the creative director and not guiding him through an improvement process, he was deprived of the opportunity to rehabilitate himself.
Amount of fair compensation
When determining the extent of the fair compensation, on the basis of the New Hairstyle judgment the consequences of the dismissal can be taken into account, if these consequences can be attributed to the blame that can be put on the employer.
The Subdistrict Court ruled that there is uncertainty about the connection between the culpable conduct of the employer (the suspension of the employee and the failure to provide an adequate improvement process) and the consequences this has had for the creative director. It is not possible to establish with certainty that an adequate improvement process would actually have improved the performance of the creative director. On the other hand, in view of the profit distribution, he had a strong interest in making this improvement process succeed.
The employee requested that he be awarded a fair compensation of more than two million Euro. The Subdistrict Court saw a reason to follow the doctrine of proportional liability from the Nefalit judgment. The Subdistrict Court estimated the chance that the improvement process would be successful and that the creative director would still be working at Talpa in 2020, so that he could claim the partial payments, to be 50%. This results in a fair compensation of 50% of the amount claimed, which comes down to €1,026,449.08.
Conclusion
The creative director has been awarded a remarkably high fair compensation. The compensation is so high because as a result of the dismissal, the employee missed the opportunity to claim the profit distribution. If an employee misses out on a high variable remuneration as a result of his dismissal, there is a risk that the employer will be punished for culpable acts or omissions with a high fair compensation.
Author
Lisa Klumperink
