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Países Bajos - Requisitos de fondo para el despido


Requisitos de fondo de despido (motivos permitidos y prohibidos) - Países Bajos - 2019    

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Obligación de motivar el despido :
Remarks:
  • Art. 7:676 (2), 7:671a (6) CC.


Motivos autorizados (despido justificado) : cualquiera justa causa
Remarks:
  • Under Dutch law, t4 categories of dismissal are established:
    1) Termination via a prior permit from the Employment Insurance Agency UWV WERKbedrijf (former CWI) or a tripartite committee established by collective agreement. (for economic redundancy reasons or based on long term invalidity/sickness of an employee)
    2) Judicial rescission of the contract for other “reasonable grounds”, related to the employee’s conduct or capacity.
    3) Termination for “urgent causes”.
    4) Termination by mutual consent.

    1) Dismissal via prior authorization from the UWV WERKbedrijf, Art. 7:671a (1) CC: the UWV will grant the permit if it considers the dismissal to be based on one of the “reasonable grounds” listed in Art. 7:669 (3) (a) or (b) CC, i.e. a special economic condition of the enterprise, which requires the termination of employees, based on a prognosis of the economic development of the enterprise for at least the next 26 weeks; or a repeated or ongoing absence of an employee from work due to a sickness (which must last for at least 2 years, with breaks of at most one month at a time, see Art. 7:670 1) a) CC).
    Next to the UWV, the decision on the authorization of collective dismissals based on economic reasons can also be referred to a special committee, which has been established by a tripartite collective agreement, between the employer and worker representatives, approved by the competent administrative authority, Art. 7:671a (2) CC.
    Furthermore, the DR lists several special circumstances under which an economic dismissal cannot be considered reasonable, see Art. 2 to 8 DR, e.g. if the employer outsources the work of the dismissed employees to external contractors, self-employed persons or person employed under FTCs.
    A refusal to grant authorization for the termination by both the UWV or the tripartite committee can be appealed to the district court (Cantonal Court), Art. 7:671b (1) (b) CC.

    2) Judicial rescission: " The employer can request the validation of a termination of an employee at the district court (Cantonal court) based on any of the “reasonable grounds” listed in Art. 7:669 (3) (c) – (h) CC (see Art. 7:671b (1) (a)). These are the worker's inability to perform his or her job, in case the employer has given the employee the opportunity to improve his or her work capacity; a serious refusal to follow instructions of the employer; any other serious misconduct of the employee OR any other comparable circumstances.(More detailed regulations on the determination if a specific ground based on which an employee was terminated was “reasonable” are contained in Art. 2-8 of the DR)

    3) The employer can at any time declare a summary dismissal. For a summary dismissal, important reasons are required. Such important reasons are those circumstances that warrant a termination of the employment with immediate effect for an "urgent cause”, Art. 7:677 CC. A non-exhaustive list of acts which amount to urgent cause is provided in Art. 7:678 CC. Such acts relate to the worker's conduct, i.e. acts of fraud or other grave misconduct.

    4) A termination of an employee based on his or her written consent is always possible, however the employee is granted the right to withdraw any given consent within 14 days, Art. 7:670a (2) and (5), 7:671 (2) CC.


Motivos prohibidos : estado civil; embarazo ; licencia de maternidad; presentación de una queja contra el empleador; enfermedad o accidente profesional temporal; raza; sexo; orientación sexual ; religión ; opinion política ; nacionalidad ; edad ; afiliación sindical y actividades sindicales ; discapacidad ; cumplimiento del servicio militar o civil ; denuncia de violaciones
Remarks:
  • Race, sex; religion (..) are not listed as prohibited grounds for dismissal as such, but as invalid grounds for discrimination with regards to termination of employment:
    - Equal Treatment Act (1994, as amended in 2015): Art. 1 and 5 1) f;
    - Equal Treatment (Disability and chronic illness) Act (2003), Art. 1 and 4 b).
    - Art. 7:646 CC on sexual discrimination with respect to employment (incl. pregnancy, maternity, childbirth);
    - Equal Treatment in Employment (Age Discrimination) Act (2003): Art. 3 c)

    In addition, an employer is prohibited to give notice:

    1) when the employee is unable to perform his/her work due to ill-health, unless the incapacity has lasted for at least two years (Art. 7:670 (1) CC) or unless the employee has refused to comply with reasonable instructions from a doctor or the employer or refused to perform suitable alternative work (Art. 7:670a CC);
    2) when an employee who is fit to perform the agreed work is pregnant, during her/his maternity leave or paternity leave or the six weeks following the end of that period (Art.7:670 (2) CC) or when the employee is taking adoption leave (Art. 7:670 (7) CC).;
    3) when an employee is doing military service or performing alternative service (Art. 670 (3) CC);
    4) to a member of a works council or any of its committees (Art. 7:670 (4) CC); the ban on terminating Works Council members and/or candidates is however not applicable in case of collective dismissals based on economic grounds, if it can be expected that the employee will lose the position granting him or her the termination protection within 4 weeks, Art. 7:671a (11), 7:670a (3) (c) CC, or, in case of a termination based on the worker’s conduct or capabilities, if the termination visibly does not relate to the employee’s position in the Works Council or is in his or her interest, Art. 7:671b (6) CC.;
    5) because the employee has filed a claim, whether or not brought to court, for sex discrimination, for unequal treatment based on working-hours or employment contract (fixed-term or permanent) (Art. 7:646, 647, 648, 649 CC);
    6) to an employee who had been a member of a works council or any of its committees less than two years prior to the notice, or is eligible for election to the works council, unless with prior judicial approval, Art. 7:670(10) CC. The latter will only be given when the employer can make a convincing case that the reason for termination is not related to the employee's duties for the works council.


Trabajadores que gozan de una protección particular (fuero): representantes de los trabajadores ; mujeres embarazadas o con licencia de maternidad ; trabajadores que desempeñan servicio militar/servicio alternativo
Remarks:
  • An employer is prohibited from giving notice:
    1) when an employee who is fit to perform the agreed work is pregnant, during her maternity leave or the six weeks following the end of that period (Art.7:670 (2) CC);
    2) when an employee is doing military service or performing alternative service (Art. 670 (3) CC);
    3) to a member of a works council or any of its committees (Art. 7:670 (4) CC); the ban on terminating Works Council members and/or candidates is however not applicable in case of collective dismissals based on economic grounds, if it can be expected that the employee will lose the position granting him or her the termination protection within 4 weeks, Art. 7:671a (11), 7:670a (3) (c) CC, or, in case of a termination based on the worker’s conduct or capabilities, if the termination visibly does not relate to the employee’s position in the Works Council or is in his or her interest, Art. 7:671b (6) CC.;
    4) to an employee who had been a member of a works council or any of its committees less than two years prior to the notice, or is eligible for election to the works council, unless with prior judicial approval, Art. 7:670(10) CC. The latter will only be given when the employer can make a convincing case that the reason for termination is not related to the employee's duties for the works council.


Notas / Comentarios
Under Dutch law, an employer who intends to dismiss an employee must, based on the nature of the dismissal (economic or due to the worker’s conduct or capacity), either refer to:
1) termination via a prior permit from the administrative authority UWV WERKbedrijf (in case of economic dismissals or dismissals due to long-time sicknesses), or
2) judicial rescission of the contract (in case of the other types of dismissals).
In addition, summary dismissal is permitted provided there is an "urgent cause".