Avvocati Ius Lavoristi Italiani
Congresso Nationale, Genova, 19-20 September 2014

1.Obtain prior permission to give notice from the Social Security
Institution (UWV);
2.Request the Court to rescind the employment contract;
3.Termination for urgent cause;
4.Reach mutual consent with the employee in the form of a settlement agreement
Options 1, 2 and 3 will be explained in the next slides
2

Submit written application for a dismissal permit at the UWV -> must contain the dismissal ground + supporting documentation
Possibility employee to submit statement of defens
Dismissal committee considers if there is a reasonable ground:
• the employee’s incompetence or misconduct;
• the economic reasons -> are the
‘principle of reflection’ and ‘seniority principle’ properly applied
• Severe and prolonged disturbance of the labour relationship
Approval: notice of termination
< 5 years
> 5 years - < 10 years
1 month
2 months
> 10 years - < 15 years 3 months
> 15 years 4 months if the notice period is not respected the employee can claim compensation
Rejection: Remains employed
The is no appeal possible against the decision of the UWV
End contract
The UWV is not in a position to impose severance pay
Manifestly unreasonable dismissal; employee can start legal proceedings claiming that dismissal was
‘manifestly unreasonable ”. If so, the employer must compensate the actual damage incurred by the employee
3

• Dismissal during a probationary period
• Termination by mutual consent
• Dismissal due to an urgent cause
• Bankruptcy
• Fixed term contracts expiring by operation of law
• Resignation by the employee
• Rescission by the Court
4

Court:
• Employer: Request for rescission due to an “important reason”
•
Employee: File a statement of defens
• Oral hearing
• Decision
Request sustained: end contract Request denied: no termination of contract
No possibility to appeal!
The amount of severance pay is calculated on the basis of a judicial formula:
A (weighed years of service) x B (gross payment per month x C (correction factor)
A is years of service until the age of 35 count for 0.5; between 35 and 45 for 1; between 45 and 55 for 1.5 and as from 55 for 2.
B is the gross payment per month, including other fixed elements of remuneration, such as holiday allowance,
13 th month and average bonus (if structural)
C is correction factor. If neither party is to be blamed for termination it will be set at 1.
If the employer is to blame it will be adjusted upwards, while it will be adjusted downwards when the employee is to blame.
5

• No UWV permit is required
• Has immediate effect
• Without notice period
Requirements:
Urgent cause: serious misconduct
Means conduct or characteristics of the empoyee which the employer cannot reasonably be required to allow, such as fraud, theft etc.
Communicated to employee as soon as possible (preferably writing) after having given the employee the opportunity to defend/respond
End of contract Court
Request sustained Termination is void
6

• Under the proposed legalisation the employer can no longer freely choose between submitting a termination request to the court or the
UWV. The ground for termination will be decisive in determining which procedure must be followed.
• The new procedure allows parties to appeal UWV or court decisions to a higher court
• Where an employment contract has lasted for at least two years, the employer must pay a transition budget to the employee if the employee’s termination is involuntary (regardless of the dismissal route) or if a temporary contract is not extended
Transition budgets serve as a compensation for termination of an employment contract and as assistance to transition an employee to alternative employment. The transition budget amounts the first ten years 1/3 of a monthly salary for each year of service. After these ten years the transition budget amounts to ½ of a monthly salary for each year of service. A transition budget cannot exceed € 75,000.
7

• Economical
• Technical
• Organisational
• Long term disability (> 2 years)
UWV
Approval:
Notice period
No approval:
Remains employed
Reasons related to the ‘person’ of the employee
Court
• Termination
• Compensation
• Reinstatement
• Nullification
Termination with/without additional compensation
No termination: remains employed
New: court
New : Court of appeal
8

If the employer and employee agree to terminate their employment relationship by mutual consent, a mandatory two weeks reflection period will apply, during which the employee can revoke his or her consent to the termination of employment without reason.
Accepts:
End contract
Initiative employer
Termination agreement
Employee 14days reconsider
Withdraws:
UWV/court
9

North America: Mexico - United States
Central & South America: Argentina - Brazil - Chile - Colombia - Panama - Peru
Western Europe: Austria - Belgium - Cyprus - Denmark - Finland - France - Germany - Greece - Ireland - Italy
Luxembourg - Netherlands - Norway - Portugal - Spain - Sweden - Switzerland - United Kingdom
Eastern Europe: Czech Republic - Estonia - Hungary - Latvia - Lithuania - Poland - Romania - Russia - Slovakia - Turkey - Ukraine
Middle East & Asia Pacific: China - India - Israel - Japan - Korea, Republic of - New Zealand - United Arab Emirates www.iuslaboris.com