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Notice Are employers required to give notice of termination? Yes, the employer must give notice of termination. Any notice of termination must be in writing. Otherwise, the termination is null and void. Notification by email, fax or text message will not suffice.
Depending on the employee’s years of service, notice of termination must be given well in advance. The basic notice period, applicable for the first two years of employment, is four weeks either to the 15th of a calendar month or to the end of a calendar month. Thereafter, the notice period increases from one month to the end of a calendar month to a maximum of seven months to the end of a calendar month for employees with 20 or more years of service.
Redundancies What are the rules that govern redundancy procedures? Employees with more than six months’ service enjoy protection from dismissal under the Protection Against Dismissal Act, provided that they work in a business with regularly more than 10 employees.
Under the Protection Against Dismissal Act, any notice of termination is void unless it is justified under the act. A redundancy situation (ie, a loss of job opportunity) may qualify as a reason for terminating the employment. However, even in a redundancy situation, notice of termination will nevertheless be unjustified under the act if the employee is dismissed despite other vacancies in the company or if the employer does not sufficiently consider exactly whom to lay off (proper social selection).
Are there particular rules for collective redundancies/mass layoffs? In companies which regularly have more than 20 employees, the employer must inform and consult with the works council, if any, in the event of a planned operational change such as:
- a (substantial) cutback in staff;
- closure or relocation of the business (or significant parts thereof); or
- a spin-off or merger.
In any of these cases the employer must seek to agree on a balance of interests with the works council and conclude a social plan with the work council.
The employer must also notify the employment agency prior to any dismissal in the event of a mass layoff. What qualifies as a mass layoff is determined under the Protection Against Dismissal Act, as follows:
- in businesses with more than 20 but less than 60 employees, the planned dismissal of more than five employees within a period of 30 calendar days;
- in businesses with at least 60 but less than 500 employees, the planned dismissal of 10% of staff or more than 25 employees within 30 calendar days; and
- in businesses with 500 or more employees, the planned dismissal of at least 30 employees within a period of 30 calendar days.
Dismissals are null and void if the employer fails to inform the employment agency in time or does not properly inform the employment agency.
Protections What protections do employees have on dismissal? Employees may institute legal proceedings against a notice of termination before the local labour court. If an employee wants to invoke his or her rights under the Protection Against Dismissal Act, the claim must be filed within three weeks of service of the notice of termination. The motion can be for reinstatement only. A dismissal claim will succeed if the employer fails to show that the notice of termination is justified under the Protection Against Dismissal Act.
In general, the employee is not entitled to a severance payment instead of reinstatement; equally, the employer cannot terminate the employment relationship against a severance payment in case of unjustified notice. If the employee is reinstated, he or she may claim back pay from the date following the termination of employment under the (invalid) notice of termination.
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