Can an employee lose his right to the transition payment (transitievergoeding) by refusing another position?
In principle, if the employer wants to dismiss an employee or not extend their contract, by law, they are obliged to pay the employment compensation for dismissal, the so-called transition payment (transitievergoeding). There are a few exceptions when the transition payment does not have to be paid, for example, when the employee resigns himself (but even then, there can be particular circumstances due to which the employee maintains his right).
Refusing other positions
Another exception is when the employee acted with 'serious culpability' ('ernstig verwijtbaar handelen') and lost his right to the transition payment (as set out in Article 7:673 paragraph 7 under c of the Dutch Civil Code). In the case that came before the Court of Appeal 's-Hertogenbosch, the court had to assess whether the employee had acted with serious culpability.
The employee's position had ceased in this dispute, and the employer offered him other jobs. The employee, however, did not consider these positions suitable and refused them. The employer terminated the employment contract after receiving a dismissal permit from the UWV (the Employee Insurance Agency). According to the employer, the employee had acted seriously culpable by refusing the offered alternative positions and had no right to the transition payment.
A strict meaning of serious culpability
The Court of Appeals, however, disagreed with this reasoning. According to the court, the employee only loses his right to the transition payment in exceptional cases where the employee committed an 'obvious' ('evident') seriously culpable act or omission. The court must apply article 7:673(7)(c) of the Dutch Civil Code with caution.
By refusing the other offered positions, the employee accepted the risk that his employment contract would be terminated, which risk indeed occurred. But the refusal does not have the consequence of also losing the right of transition payment. As stated before, this only happens in exceptional cases. The employer must make an effort to relocate the employee whose job is terminated. This, however, does not mean that the employer has the right to (continue to) bind the employee.
Furthermore, the employee had his reasons for not accepting the other positions; he did not refuse the posts without any argument or debate. Based on all this, the court concluded that the employee had not acted with serious culpability and was entitled to the transition payment.