An employer owes an employee a transition fee if the employment agreement is terminated by the employer or is rescinded by the court at the employer's request. An exception is the situation in which the non-continuation of the employment agreement is a consequence of a seriously culpable act or omission of the employee. (Section 7:673 subsection 7 under c DCC). In that case, the employer does not owe the employee a transition fee. A recent case before the Court of Appeal of ’s-Hertogenbosch concerned the question whether an employee's refusal to be re-employed constitutes a serious culpable act.
Obligation to Re-employ
Since the introduction of the Dutch Work and Security Act, employers are obliged by law to re-employ employees who are to be dismissed. An application for dismissal to the UWV or for rescission to the Court can only be allowed if a reasonable ground for dismissal exists, and if re-employment of the employee into a suitable position within a reasonable term is not possible or not logical. A suitable position is a position that matches the employee's education, experience and capabilities.
The employer has to examine suitable options actively and to consult about them with the employee. In principle, referring the employee to a list of vacancies is not considered sufficient effort. Non-compliance with the obligation to re-employ may lead to the rejection of the application for dismissal by UWV or the application for rescission by the Court. If the employer has made sufficient efforts to re-employ the employee, but no suitable position is available, the termination of the employment agreement will follow, and the employee will generally be entitled to a transition fee.
Employee Refusing Re-employment
Recently, the Court of Appeal of ’s-Hertogenbosch was presented with the question whether an employee who refuses to be re-employed was entitled to a transition fee. The employee had been working as a quality assurance officer in shifts since 20 June 2000. The employee's position had become redundant on 1 September 2019. With the permission of the UWV, the employer terminated the employment agreement as of 1 February 2020. Afterwards, the employer refused to pay the employee a transition fee, because the employee had allegedly refused to accept a suitable position three times in a row. The employee refused the first two positions because they were day shifts, and she claimed to have no suitable means of transport to reach the company site during the day. The employer then offered her a (different) position working in shifts, but the employee – who was unfit for work at the time – failed to respond to this offer.
Opinion of the Court of Appeal
The Court of Appeal held that it has not become apparent that the last position offered to the employee was not a suitable position. Besides, the employee's unfitness for work did not prevent her from accepting the position offered. The employee's reluctant attitude has led to it that the employer was unable to re-employ the employee. In the opinion of the Court of Appeal, this conduct by the employee can be qualified as seriously culpable, and therefore the employee is not entitled to the transition fee. The Court of Appeal also found that the decision not to award the transition fee was not unacceptable according to standards of reasonableness and fairness. It was not a matter of a “relatively small mistake” by the employee, and the personal circumstances of the employee – including her twenty years of service – do not carry sufficient weight either. The employee concerned missed out on a transition fee of EUR 42,000.
Conclusion
This judgment confirms that an employee cannot simply refuse an offer of a suitable position from his employer. Such a reluctant attitude may have substantial financial consequences. The employee puts his transition fee at risk and his refusal may also have negative consequences for his unemployment benefits, since the Dutch Unemployment Insurance Act contains an obligation for the employee to accept suitable work. It is therefore in the employee's best interest – as well as in the employer's – to follow the re-employment process with care.
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