Risk management in instant dismissal

It will happen to you: an employee runs off with company property without your permission. Theft by employees unfortunately occurs regularly. In such a situation, confidence in good cooperation is gone overnight. What to do now? Theft can be an urgent reason for immediate dismissal, but is this possible and what should you pay attention to as an employer?

Urgent reason

An employer may immediately terminate an employee's employment contract for an urgent reason, with simultaneous notification of that reason to the employee.
What constitutes an urgent reason is stated in the law. Examples include theft, fraud or sexual harassment. In any case, it must be an act, characteristic or behavior of the employee that does not allow the employer to maintain the employment contract. The reason must be so urgent that the employment contract must be terminated immediately by the employer. Not only the employer, but also any (objective) outsider must find that there is an urgent reason.

Instant dismissal under the WWZ

Because summary dismissal is the most far-reaching way of terminating an employment contract, the subdistrict court tests severely. The consequences of summary dismissal are serious for an employee and afterwards - when it is established that the summary dismissal was lawfully granted - there is no entitlement to WW benefits. The assessment of summary dismissal did not change after the Work and Social Security Act (hereinafter WWZ) came into force on July 1, 2015.
What did change is the method of opposition. Sending a letter of protest against the summary dismissal and then sending a letter of interruption or initiating proceedings within six months is no longer possible. Under current law, an employee can only oppose the summary dismissal through the subdistrict court. The employee does not have much time to do so: within two months after the summary dismissal, the employee must submit a request to the subdistrict court to annul the dismissal or request fair compensation. If this is not done within two months, the employee can only claim the transitional compensation up to three months after the summary dismissal. Once a period of two and three months respectively has elapsed, the employee can no longer take action.

Reducing risks

When an employee timely opposes summary dismissal and disputes the existence of an urgent reason, the employer must prove that an urgent reason for summary dismissal is present. This can be tricky.

Therefore, it is very important that employees are aware of what is and is not allowed within the organization. A clear policy in the form of company regulations received and signed by employees is very important in this regard. However, an employer must ensure that the rules within the organization are actually observed. It must be clear to the employees that if they act in violation of the applicable rules, there may be consequences - such as summary dismissal.

A mere suspicion of a "misdemeanor," moreover, is insufficient. An employer must investigate whether the employee actually acted wrongly and whether this would be sufficient grounds for summary dismissal. The urgent reason must be demonstrable (evidence) and, in addition, any summary dismissal must be proportionate to the employee's offense. The employer will have to "hear" the employee about the offense to give him an opportunity to tell his side of the story. Only then can an employer make a proper balancing of interests as to what action to take. In that balancing of interests, an employer must consider all the circumstances, including the employee's personal circumstances, in its decision. Should the employer then proceed to grant summary dismissal, the employer must clearly communicate the urgent reason for the dismissal to the employee.

If the subdistrict court rules that the summary dismissal is unjustified and the employee requests reinstatement of the employment contract, the termination of the employment contract will be annulled and the employment contract will continue retroactively. In that case, wages must also be paid retroactively and, in principle, the employee will have to return to work. However, in most cases this is an undesirable situation. What can you do about it?

Conditional dissolution

 Filing a conditional rescission request gives an employer more certainty as to whether the employment contract has been terminated. An employer requests the subdistrict court to dissolve the employment contract based on one of the grounds for dismissal listed in the law (e.g. culpable act/negligence or a disturbed working relationship) if the summary dismissal is timely annulled by the employee. The standard of review of the grounds for dismissal is less strict than that of the urgent reason for summary dismissal. There is therefore a chance that the subdistrict court will not uphold the summary dismissal, but will subsequently dissolve the employment contract because of the (for example) disturbed employment relationship. Under the old law, it was perfectly possible to submit a conditional request for dissolution to the subdistrict court. Under the WWZ, this possibility was still under discussion.

On December 23, 2016, the Supreme Court issued a ruling. According to the Supreme Court, a conditional dissolution is possible in certain cases even after the WWZ comes into force. Subdistrict courts should, as much as possible, handle the request for annulment in respect of the summary dismissal and the conditional dissolution request simultaneously. When the subdistrict court annuls the summary dismissal, it will then assess whether or not the employment contract can be dissolved. The conditional request for dissolution should be rejected if the instant dismissal is upheld, because there is no longer any interest in doing so: the employment contract has already been terminated by the instant dismissal.

If your employee opposes the summary dismissal through the subdistrict court, it is advisable to act quickly and submit - in addition to a defense - a conditional dissolution request. In that case, the subdistrict court can deal with the assessment of the summary dismissal at the same time as the conditional dissolution request. Should the summary dismissal not be upheld, the consequences of a wrongfully granted summary dismissal may be limited.

Conclusion

In assessing the instant dismissal, the subdistrict court considers all the circumstances of the case. These include the employee's age and length of service, but also his overall performance. In the case of a one-time offense, the subdistrict court may rule that the employee should have been warned first and given the opportunity to improve his behavior. It is therefore necessary to make a good balance of interests regarding the measures to be taken and to act expeditiously both in the period before and after the immediate dismissal.