The Netherlands: A new ground for dismissal, called the cumulation ground, enters into force on 1 January 2020
A new ground for dismissal, called the cumulation ground, was introduced as part of the Balanced Labour Market Act (in Dutch: WAB). If the employment contract is terminated on the basis of the cumulation ground, a higher transition payment might be owed.
The thinking behind these changes is that the courts can provide insufficient tailor-made decisions. The additional payment is for the compensation of the termination of the employment contract, whilst the other grounds for dismissal, were, each in and of themselves, insufficient to justify a dismissal.
The contents of the cumulation ground
The cumulation ground is added as a part (under i) of Section 669, subsection 3, Book 7 of the Civil Code. According to the legislative text, there must be a combination of circumstances, referred to in two or more of the grounds (parts c up to and including h), which is such that it cannot be required in all reasonableness from the employer, to let the employment contract continue. The closed system of dismissal grounds hereby remains intact. The h-ground (catchall ground) is also retained. The cumulation ground does not relate to the a and b ground. This also applies to (higher) appeal cases.
The employer can alternatively request termination of the employment contract on the basis of the cumulation ground. This can also be the principal basis of the request for termination, whereby the circumstances under two or more grounds (c-h) must be put forward. Please note: a higher payment for the employee can be in exchange for this (see hereinafter).
According to transitional law, the start of the proceedings (submitting the request for termination to the court) will be the decisive factor at first instance. This applies also to (higher) appeal cases.
In the event of termination on the cumulation ground, the court can grant an extra payment to the employee. The court will provide reasons for whether or not it grants an extra payment. The amount of the payment is also substantiated. The extra payment cannot amount to more than a maximum of half of the transition payment, calculated in conformity with Section 673, subsection 2, Book 7 of the Civil Code. The payment is in addition to the transition payment. Moreover, a fair compensation can be granted in the event of seriously culpable actions on the part of the employer. The amount of the extra payment will be determined on the basis of the circumstances of the case. The court will inform the parties of its intention to grant an extra payment. The applicant will be hereby provided with a period to withdraw his application.
As a result of the aforesaid Balanced Labour Market Act amendments, the court will proceed faster with termination of the employment contract. On the other hand, a dismissal on the cumulation ground will become (potentially) more expensive. The question is whether the extra payment can be viewed separately from the other payments. This is indeed the intention of the legislature. Practice will show whether the courts will adhere to this envisaged distinction.