Dismissal and the i-ground
Dismissal and the i-ground
A. (Antonio) Robustella
About dismissal and the i-ground
Under the dismissal law in force since July 1, 2015, an employee can only be dismissed involuntarily if there are reasonable grounds for doing so and re-employment is not possible or reasonable. What constitutes reasonable cause is listed exhaustively in the law. There is also the possibility of terminating an employment contract in connection with or after the day on which the employee has reached retirement age – the state pension age, unless a different age has been agreed upon.
A preventive dismissal test applies in the Netherlands. This means that the employer – barring a few exceptions, such as the statutory director – needs prior permission to terminate an employment contract with an employee. Depending on the reason for the dismissal, the subdistrict court or the UWV assesses whether the employer has reasonable grounds for dismissal and whether the employer has made it plausible that re-employment is not possible or reasonable.
Regardless of the route of dismissal, the employer also owes the employee a transition fee when terminating on his initiative. There is an exception to this only if the reason for termination is due to serious culpable acts or omissions by the employee.
Until January 1, 2020, a dismissal was only possible if all conditions of one of the reasonable grounds mentioned in Article 7:699 (3) of the Civil Code were met. The i-ground added as of January 1, 2020, also called cumulation ground, ensures that two or more grounds for dismissal can be combined. The combination must result in the employer not being reasonably required to continue the employment contract. The circumstances mentioned in grounds c through e, g and h qualify for cumulation:
- frequent absenteeism of the employee (cgrond);
- communicated dysfunction of the employee after a followed improvement process (dground);
- Employee’s culpable act or omission (e-ground);
- a disrupted working relationship that makes it unreasonable to expect the employer to continue the employment contract (ggrond);
- circumstances other than those listed in a. to g. that are such that the employer cannot reasonably be required to allow the employment contract to continue (hground).
It is up to the employer to make the ground for dismissal invoked sufficiently plausible. An employer who cannot base his request for dissolution entirely on the circumstances of one ground for dismissal or is not certain that the request for dissolution can be based on the circumstances of one ground for dismissal, may base his request for dissolution (also) on the i-ground by combining circumstances from the aforementioned grounds for dismissal together.
The cumulative ground is intended for cases in which continuation of the employment can no longer reasonably be demanded of the employer, where the employer cannot base this on circumstances from a single ground for dismissal, but can motivate and substantiate this with circumstances from several grounds for dismissal together. These may include, for example, culpable actions of the employee combined with inadequate performance and/or a disturbed working relationship. However, it is ultimately up to the court to judge whether the circumstances put forward by the employer from two or more grounds for dismissal combined (do) constitute reasonable grounds for dismissal.
In any case, the mere fact that the employer does not want to continue the employment contract is insufficient for a dissolution on the i-ground. Even if the file is inadequate, reliance on this cumulative ground will have little chance of success.
When the court dissolves the employment contract on the i-ground, the subdistrict court has the option to award an additional compensation to the employee in the amount of up to half of the amount of transition compensation to which the employee is entitled upon termination of the employment contract. This compensation is separate from any entitlement of the employee to fair compensation for culpable acts or omissions of the employer.
In a request for dissolution on the i-ground, it is necessary that concrete facts and circumstances (can) be presented that make dissolution on the i-ground reasonable. It is insufficient to repeat only the facts and arguments presented in support of an appeal to one or more of the other grounds for dismissal. The i-ground, like an appeal to any of the other grounds, must be justified and substantiated separately. The i-ground is not intended to repair defects in other grounds for dismissal.
In the first judgments, some subdistrict courts took as their point of departure that in order for a dissolution to be based on the i-ground, at least one of the grounds for dismissal put forward in the combination must be nearly sufficient. However, the legislative history does not explicitly state that at least one of the grounds for dismissal invoked in combination must be nearly sufficient for a successful appeal on the cumulation ground. The question is whether the approach of these district courts is therefore correct. However, the combination of circumstances invoked will in any case have to have such substance that the subdistrict court is convinced that a fruitful cooperation between the parties is no longer a realistic prospect. This is because the substantiation of the combination of grounds for dissolution put forward by the employer must be sufficient to be able to rule that the employer cannot reasonably be required to let the employment contract continue.
The employer should also be aware that in the event of dissolution on the i-ground, the judge may award an additional compensation to the employee in the amount of up to half of the transition compensation. Good to know is that if the judge awards an additional compensation to the employee, the employer can choose to withdraw the dissolution request. This option also exists for the employer when a fair compensation is awarded to the employee as a result of the employer’s dissolution request.