Employment Law Newsletter

Transcription

1 August 2014 Employment Law Newsletter This Employment Law Newsletter of the HVG Employment Law section is to provide you with concise information on recent case law, legislation and current developments in the Dutch employment law arena. Contents: 1. Dismissal during the probationary period 2. Dismissed as result of Facebook posts placed by daughter 3. Receiving a salary without working after 1 January 2015

2 1. Dismissal during the probationary period The employee was employed on 1 September 2013 in the position of head teacher at an employer specialising in childcare, out-of-school care and playgroups. The parties concluded an employment contract with a term of 12 months and also concluded a valid probationary period. Two weeks after the start of the employment, the employer received an from the ex of the employee's partner in which she expressed her anger about the fact that the employee has been appointed as director while the employee's partner has been convicted of activities involving child pornography sites and also has a criminal record in connection with this. The employer subsequently confronted the employee with this . The employee acknowledged the relationship as well as the criminal record of her partner. The employer then terminated the employment contract with the employee with reference to the probationary period clause. The employee initiated legal proceedings in response, arguing that her dismissal during the probationary period is void. The employee claimed salary for the remainder of the employment contract, basing the claims on the fact that the employer made improper use of the probationary period clause as it is the relationship with her partner rather than the suitability of the employee that is at issue. In addition, the employee argued that the actions of the employer were contrary to good employment practices. The Subdistrict Court determined that a probationary period provides parties with the opportunity to consider for a time and without obligation whether they did the right thing by concluding an employment contract. The nature of the probationary period meant that the Subdistrict Court could not assess whether the employer's power to dismiss an employee during the probationary period is actually used for a different purpose. Abuse of the probationary period can only apply in the case of discrimination. The fact that a Subdistrict Court is not allowed to assess whether a dismissal during the probationary period is used for a purpose other than for which it was granted meant that the employee's argument that improper use applies could not hold. The reason is that according to the Subdistrict Court it is irrelevant whether the termination on the part of the employer is related to the employee's suitability for the position or to some other cause. The Subdistrict Court noted superfluously that the employer had to be able to trust the employee and that the employee had betrayed that trust by withholding the relationship. The Subdistrict Court then ruled that the dismissal during the probationary period was not contrary to good employment practices. The Subdistrict Court first considered that it has not yet been established in case law that a dismissal during the probationary period can be verified against the principle of good employment practice. Moreover, a dismissal during the probationary period cannot be manifestly unfounded on the basis of Section 7:676 paragraph 2 of the Dutch Civil Code. Verifying the dismissal against the principle of good employment practice would be contrary to this section as it is hard to draw a line between a manifestly unfounded dismissal and verification against the principle of good employment practice. In addition, bans on termination do not apply during the probationary period, which means that an employee does not enjoy legal protection. Verifying the dismissal against the principle of good employment practice would be illogical if the employee does not enjoy legal protection, according to the Subdistrict Court. Employment Law Newsletter August

3 The fact that a dismissal during the probationary period cannot be verified against the principle of good employment practice does not mean that the principle does not apply at all in the event of dismissal during the probationary period. Both the employee and the employer have to act with due care and take account of the interests of the other party in the case of such a dismissal. This decision clearly shows that a probationary period can be invoked even if the employer wishes to terminate an employment contract for reasons other than the employee's performance. In principle, dismissal during the probationary period can only be abused if the termination is related to (unlawful) discrimination. 2. Dismissed as result of Facebook posts placed by daughter The employee, an IC nurse, had worked for the same employer for more than 35 years. One night/evening, her daughter accompanied her to the employer when the employee had to work a night shift. The daughter is Miss International Netherlands and wanted to expand her portfolio with an item about healthcare. She wanted to take several photographs of the IC unit. The employee took 15 photographs of her daughter in the IC unit for a period of approximately 45 minutes, which took place during working hours. The photos show, among other things, the daughter standing next to a bed (in IC clothing) with medical equipment, also touching this equipment, and sitting behind computer screens containing patient data. The employee told another employee that she had permission for this photo shoot while this was not the case. The daughter then placed eight photos on her Facebook page. The employer considered the actions of the employee to be so unauthorised that she was dismissed with immediate effect. The employee indicated that she did not accept her summary dismissal. During legal proceedings the employer therefore claimed that in the event the summary dismissal was not confirmed during proceedings on the merits, the employment contract would be conditionally dissolved as yet on the basis of an urgent cause or on the basis of a change in circumstances without awarding compensation. The Subdistrict Court ruled as follows. The employee acted contrary to the rules and protocols that applied to her in numerous ways. She did not perform her duties or did not perform her duties sufficiently during the photo shoot and she did not guarantee patient care in an adequate manner. This case also involves an attributable violation of the privacy of the patients. The employee deliberately granted her daughter access to the IC unit and should have been aware that she was obliged to ask permission to do so. Failing to ask permission and lying about this to colleagues means that she placed her own interests above the interests of the hospital. However, it is also important that there is no actual or specific damage and that the actions can be brought back to one event that did not last long. There is no evidence of malicious intent. In addition, the employee has always performed satisfactorily during her 35-year employment. Taking all circumstances into consideration, the Subdistrict Court held that there was no urgent cause for dismissal, but that there was a breach of trust, such that the Subdistrict Court could dissolve the employment without granting compensation. Employment Law Newsletter August

4 The employee would not be able to claim unemployment benefits in the event of summary dismissal or dissolution on the basis of urgent cause, but this decision means that she can. 3. Receiving a salary without working after 1 January 2015 The first part of the Work and Security Act ('Wwz') will enter into effect on 1 January One of the changes to enter into effect on this date relates to the risk of the obligation to continue paying wages to an employee who does not work. The main rule until 1 January 2015 is 'no work, no pay'. In other words, the employer is not obliged to pay wages if the employee did not perform the work. The only exception is if the employee has not performed any activities as a result of a cause that should reasonably be attributed to the employer or in the event of illness, pregnancy or childbirth. Under the Wwz the main rule will be that the employer is obliged to continue to pay wages if and to the extent that the employee has not performed the work or has not performed part of it, unless this should reasonably be for the employee's account. The system underpinning the risk of having to continue to pay wages therefore changes into 'no work, still receive pay'. Deviations from the obligation to continue to pay wages at the expense of the employee are possible during the first six months of an employment contract. This is already the case under current law and will remain so. Deviations from the obligation to continue to pay wages at the employee's expense after six months are only allowed pursuant to a collective labour agreement. The latter possibility of exception is supplemented with two new conditions under the Wwz. Namely: 1. the limitation is only allowed for positions in respect of which it has been determined in the collective labour agreement that the obligation to continue to pay wages can be limited; and 2. the activities related to that position are incidental in nature and do not have a fixed scope. These additional conditions are intended to protect on-call workers who do not perform occasional work. The government considers that this change will not lead to an essential difference in the distribution of risks between the employer and the employee. In future, employees who participate in strikes, are absent without authorisation, who appear for work late, who are serving a prison sentence or have been placed in pretrial detention will not be entitled to continued payment of wages either. It will be up to the employer to argue and, if the employee disputes this, to demonstrate that the employee was not willing to perform the agreed work and that the failure or inability to perform the work should reasonably be for the employee's account. These changes are desirable in view of the future incorporation of the Unemployment Insurance Act Emergency Regulations into the Dutch Civil Code as of 1 April The Unemployment Insurance Act Emergency Regulations relate to the employer's power to reduce working hours (resulting in the lapse of the obligation to pay salary) if the work cannot be Employment Law Newsletter August

5 performed in whole or in part owing to special circumstances to be designated in these Ministerial regulations. These special circumstances include, for example, prolonged periods of frost or other non-economic circumstances that cannot be considered part of the normal entrepreneurial risk. It concerns local, regional and other emergencies whose effects are not limited to a single company. The employee will have the right to claim benefits on the basis of the Unemployment Insurance Act if the employer has the right to reduce working hours on the basis of the Unemployment Insurance Act Emergency Regulations. This means that the employer is also obliged to continue to pay wages in the event of, for example, a reduction or cessation of production, until the Employee Insurance Agency or the courts decide otherwise. If this were not the case, the employer would have the right to unilaterally reduce the salary in the case of a drop in production as a result of circumstances beyond his control, meaning the employer could de facto circumvent the dismissal system, given that employees would be confronted with a loss of income without the employment contract actually ending. Another new provision with respect to the risk of having to continue to pay wages is that the contractual freedom of parties to an employment contract and/or collective labour agreement can be restricted by the Minister of Social Affairs and Employment. The Minister has the power to decide that deviations from the obligation to continue to pay wages do not apply to certain branches or sub-branches of industry. Similar intentions exist with respect to the healthcare sector. Finally, another new feature is the fact that every clause that is contrary to the statutory provisions and the grounds for exception mentioned in them is void. Employment Law Newsletter August

6 HVG Attorneys at Law Civil Law Notaries Contact: Amsterdam, Utrecht Suzanne Bos T: +31 (0) E: The Hague Nicky ten Bokum T: +31 (0) E: About HVG Holland Van Gijzen Advocaten en Notarissen LLP (HVG) is a leading Dutch law firm with an outstanding reputation in the provision of legal services. Our attorneys at law and civil law notaries are active in all areas of law that are relevant to entrepreneurs and their businesses. With offices in Amsterdam, The Hague, Eindhoven, Rotterdam, Utrecht, Brussels and New York, we can offer you tailor-made solutions for all your legal problems. In the Netherlands, HVG has a strategic alliance with Ernst & Young Belastingadviseurs LLP. Holland Van Gijzen Advocaten en Notarissen LLP is a limited liability partnership incorporated under the laws of England and Wales with registered number OC and is registered in the Netherlands with the Rotterdam Chamber of Commerce under number Rotterdam Joost van Ladesteijn T: +31 (0) E: joost.van.ladesteijn@hvglaw.nl 2014 Holland Van Gijzen Advocaten en Notarissen LLP Eindhoven Fraukje Panis T: +31 (0) E: fraukje.panis@hvglaw.nl Disclaimer This publication has been drawn up with the greatest possible care. HVG is not liable for any inaccuracies and/or incompleteness of the information provided in this publication, nor can any rights be derived from its content. Employment Law Newsletter August