The general rule is that in case of a dismissal initiated by the employer, the employee has the right to a transition payment, provided that the employment has lasted for two years or longer. This rule does not apply when the reason for the dismissal is a seriously culpable act or omission by the employee. In that case, the employee does not have the right to a transition payment. On 30 March this year, the Supreme Court confirmed that in case of a summary dismissal, an employee might still have a right to a transition payment. This court case, and another recent case, are briefly discussed below.
1: Alcohol incidents after many unblemished years of service
The case before the Supreme Court concerned an employee who had received an official warning in August 2015 because he arrived at his work place smelling of alcohol, which was violation of the company’s alcohol and drugs policy. The employee repeated his behavior in March 2016, and was subsequently summarily dismissed. The employee in question was 54 years old at the time of the dismissal, and had worked at the company for 25 years, which were unblemished years of service – besides from the two alcohol incidents.
In this case, the Supreme Court reinforces the rule that a summary dismissal that is justified and upheld by a lower court, does not automatically lead to the exclusion of the right to a transition payment. The ‘urgent cause’ that the law requires for a summary dismissal, does not necessarily mean that there is a seriously culpable act or omission by the employee. Only when there is a seriously culpable act or omission by an employee, this employee is not entitled to transition payment. From this Supreme Court’s judgement it follows that lower courts have to make explicit in every summary dismissal case whether the employee has the right to a transition payment or not. The Supreme Court referred this case back to the court of appeal for a judgement on this point.
2: Refusal to adjust profile on LinkedIn
In another recent case an employee was summarily dismissed because he refused to adjust his LinkedIn profile, even after repeated requests by his employer. The employee had recently changed his job function within the company, and briefly after that received the news that the company was no longer satisfied with his performance. The employee refused to adjust his LinkedIn headline, which still said “Marketing & -PR”, because he believed that this would increase the chance that recruiters would contact him for a job in this branch. The court found that the employer did not have to accept that the employee was still representing himself as responsible for the employer’s marketing and PR. His behavior did justify the summarily dismissal according to this court, but was not a seriously culpable act or omission. As a result, the court ruled that the employee did have a right to the transition payment.
Under certain circumstances, an employee can still have a right to a transition payment despite a summary dismissal. This could lead to an extraordinary situation in which an employer is obliged to pay a transition payment, while the employee might be obliged to pay damages to the employer due to the summary dismissal. Also, the employee might not be entitled to an unemployment benefit, even though he is entitled to a transition payment.