Immediate or summary dismissal ('ontslag op staande voet') is an extreme means of terminating an employment contract because of the far-reaching financial consequences for an employee.
It is, therefore, only reasonable that the law places strict rules on this type of dismissal: the employer needs an urgent reason for the dismissal. The criteria for immediate dismissal are set out in articles 7:677 and 7:678 of the Dutch Civil Code (DCC).
Immediate dismissal
Article 7:678 paragraph 1 DCC states that for an employer, the following can be seen as urgent reasons: 'such acts, characteristics or conduct as are not necessary for the employer that the employer cannot reasonably be expected to terminate the employment contract continue'.
Case law over the years has expanded this by adding that the court must take into account all the circumstances of the case, which are:
- The nature and seriousness of the urgent reason;
- The duration of the employment;
- The personal circumstances of the employee, and
- The consequences of the immediate dismissal for the employee
The court case
The case before the Subdistrict Court of Zeeland-West-Brabant shows what not to do as an employer in case of immediate dismissal.
In this case, the employee called in sick with burnout symptoms. Shortly after, he attended a concert, which the employer found out. The employer dismissed the employee over the phone because the employee refused to resume his work, even though he could do so, according to the employer.
Naturally, the employee initiated a court procedure to annul the dismissal and to order the employer to continue paying his salary. The employer didn't hire a lawyer for the procedure or even submit a statement of defence before the hearing.
During the hearing, the employer argued that he had doubts about the employee's sick leave, and the fact that the employee attended a concert with his alleged burnout complaints was the last straw for the employer. He had sought advice from a befriended doctor, who told him that someone with a burnout may not feel the need to attend a concert. Furthermore, the employee argued that a (company) doctor wouldn't be able to determine the symptoms of burnout.
The role of the company doctor
The court keeps it short and simple: the immediate dismissal is invalid.
A company doctor is the only one who can and may assess whether the employee is incapacitated for work (and, therefore, whether the sick report is justified). The company doctor must speak to the employee himself. In this way, the company doctor can form a complete picture of the employee's illness and the consequent work limitations.
The company doctor will also estimate the duration of the employee's limitations and advise the employer on the appropriate work that the employee may be able to perform. In this case, there was no such opinion or advice from the company doctor. The doctor the employer called was not a company doctor. He didn't even see the employee in person, nor had he spoken to him.
The employer was not justified in imposing any measure or consequence for the employee's failure to resume work. So, the employment contract continues with the employee still being sick.