Many of your employees will probably be going on holiday this summer. While they are enjoying some rest and relaxation, you as an employer might have to deal with a number of issues during the holiday period. Are you, for example, allowed to go into your employee’s mailbox if he or she is on holiday and what can you do if an employee goes on holiday without permission? In the weeks ahead, we shall be providing you with an answer to this and other holiday-related questions arising from employment law.
Question 3 - Your employee has not obtained permission to take any holiday, but does not appear to be at work either. What now?
Before answering this question, it must first be established whether the employer has complied with the rules for establishing days of paid leave under Article 7:638 of the Dutch Civil Code. This article stipulates that the employer must in principle establish paid leave according to the employee’s wishes, unless there are important reasons preventing this. Important reasons include, for example, if the paid leave the employee wishes to take will result in serious disruption to operational management. There is also a two-week deadline for making a decision on this. If the employer does not make a decision by this deadline, the paid leave will be deemed to have been established according to the employee’s wishes. A longer deadline for making a decision can be agreed for paid leave that exceeds the statutory requirements if there is a written agreement.
If it appears that the employer has complied with these rules and the employee still goes on holiday without permission, this may be deemed to be unlawful absenteeism or refusal to carry out work. In such cases, the employer may choose not to pay any wages for this throughout the period in which the employee has gone on holiday without permission. Based on Article 7:627 of the Dutch Civil Code, ‘no work, no pay’ shall apply in principle.
Should the employer in this situation also be able to proceed with dismissal with immediate effect?
In the event of dismissal with immediate effect, the judge shall assess whether there is an urgent cause that justifies dismissal. For the purposes of this test, the judge may also consider whether the employer has complied with the rules of Article 7:638 of the Dutch Civil Code (see, for example, ECLI:NL:GHSHE:2014:1433). If the judge concludes that the employee has wrongly gone on holiday without permission, this may in certain cases constitute an urgent cause for dismissal (see, for example, ECLI:RBNNE:2017:185). With regard to the question as to whether there is an urgent cause, the judge shall, however, also consider all the circumstances of the case, together and in relation to each other (such as age, length of service, employment market opportunities, etc.). In doing this, there is always a risk that a judge may reach the conclusion that there is still no urgent cause for this.
There are also additional requirements for legally valid dismissal with immediate effect. Dismissal must be given immediately by disclosing the compelling reasons immediately. Finally, it should be noted that dismissal with immediate effect since the introduction of the Work and Security Act (WWZ) may result in a lot of legal procedures and create a great deal of uncertainty. The employer thus needs to consider carefully whether it would not make more sense to ask the sub-district court to proceed with dissolving the employment contract instead of dismissal with immediate effect.