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How do you motivate a dismissal?

Tuesday 20/07/2021
HR Legal CAO 109 – kennelijk onredelijk ontslag

Firing an employee, for whatever reason, is never pleasant. You must follow specific procedures. In addition, since the introduction of CLA (Collective Labour Agreement) No. 109, the dismissal procedure includes additional obligations, including those with regard to the motivation for the dismissal. We have listed the new features for you.

CLA No. 109

The CLA No. 109 of the National Labour Council introduces 2 innovations to labour law:

  1. The possibility for the employee to request the reason for dismissal
  2. Manifestly unreasonable dismissal

Apart from a few exceptions (temporary employment, dismissal for serious cause, etc.), this collective agreement applies to all employment contracts and dismissals.

Requesting and justifying the grounds for dismissal

Only after a legally valid request from your employee are you, as an employer,obliged to motivate a reason for dismissal.

  • The request must be made within the time limits specified in the law. This is either within 2 months after an immediate dismissal, or within 6 months after the termination of the contract with a notice period, with a maximum of 2 months after the employment was effectively terminated.
  • The request must be made by means of a registered letter. That does not mean an email, text, WhatsApp, message on Teams, etc.
  • The request may be validly sent on behalf of the employee by an attorney or union representative.
  • If your employee makes a valid request, you, as an employer, are obliged to inform your employee of the concrete reason for the dismissal by registered letter within a period of 2 months following receipt (sending date + 3 working days) of the employee's letter.
  • An incorrect request means that there is no obligation to answer.
  • As an employer, you must provide information on the concrete grounds for dismissal. This must state the real reason that gave rise to the termination of the contract. The lack of a real reason may result in a civil penalty consisting of 2 weeks pay.

Manifestly unfair dismissal

An employee who does not agree with the reason for dismissal given by the employer may challenge the dismissal as being manifestly unreasonable.

A manifestly unreasonable dismissal is a dismissal that would never be decided by a 'normal and reasonable' employer, and that is not due to:

  • the behaviour of the employee,
  • his or her suitability for the job or,
  • the needs of the company (for example, a re-organisation).

If the dismissal was manifestly unreasonable, the compensation payable will vary from 3 to 17 weeks of salary.

What is the best way to deal with a dismissal?

Never be unprepared when carrying out a dismissal. The better prepared you are, the easier it will be for you to demonstrate the reason for the dismissal in the event of a dispute. This step-by-step plan will get you started.

Step 1: be analytical and never make false statements

Always give the real reason for the dismissal, and communicate it to your employee. Giving the wrong reason is not a good idea. If you cannot prove the reason, you, as an employer, will have to pay a civil penalty, and this could lead to a manifestly unreasonable dismissal.

Step 2: document

Be sure that you can prove the specific reason for the dismissal. This can be done using evaluation forms, statements from colleagues, written warnings, e-mails from colleagues, managers, the employee himself, etc.

Please note that you must collect this information in compliance with applicable GDPR rules. Consider the legislation on camera surveillance (CLA No. 68) and the legislation on the control of electronic online communication data (CLA No. 81).

Step 3: be specific and not too concise

Give your employee a clear answer that is well-reasoned. Avoid vague descriptions or general wording, and give a concrete motivation. Do not simply refer to the reason stated on the C4 document. Also cite concrete examples and refer to statements made by colleagues, warnings already issued, evaluations, etc.

If a discussion arises, or if you have doubts about your approach, our HR legal team is ready to assist you.

Contact one of our lawyers

Dylan Casaer

Dylan Casaer

Partner - Lawyer