The Netherlands: Supreme Court – Entitlement to transition payment also possible in the event of instant dismissal

The law stipulates that an employer does not (in principle) owe any transition payment in the event of a serious imputable act on the part of an employee (Book 7, Article 673(7), opening words and under c, of the Dutch Civil Code).

On 30 March 2018, the Supreme Court ruled that instant dismissal does not necessarily mean that serious imputable acts have been committed. The Supreme Court considered the following (paragraph 4.2):

“(…) If the Court of Appeal was of the opinion that in the case of a legally valid instant dismissal there is never any entitlement to a transition payment, this opinion is incorrect. The Court of Appeal has disregarded the fact that the establishment of the existence of a compelling reason does not mean that the dismissal is due to serious imputable acts or omissions on the part of the employee.”

In this case, the employee was instantly dismissed because he had appeared at work under the influence of alcohol several times, despite the employer’s alcohol policy. The employee argued that he could not be blamed for his alcohol addiction, or at most could only be blamed to a limited extent.

The Supreme Court referred the case to the Amsterdam Court of Appeal.

Earlier this year, in its findings of 12 January 2018, the advocate general at the Supreme Court had advised that, in principle, there should be no entitlement to a transition payment if an immediate dismissal is justified. The Supreme Court’s ruling of 30 March 2018, therefore, does not concur with this.