An employer does not pay a transfer fee if an employee is guilty of a "seriously liable act or omission". But what happens in a case of dismissal?
The transition allowance is known since the introduction of the Work and Security Act. This type of an allowance is payable when an employee is employed for at least 2 years. For the first ten years of employment, the employee is entitled to a third monthly salary per year of employment, from the tenth year of employment, the salary is half a month's salary per employment year.
By 2020 there is a plan to make a transfer plan for employees older than 50. They would receive a higher transition fee – a one-month salary.
Serious Accountability
An employer does not have to pay his employee the transfer fee when he has been guilty of a "seriously liable act or omission". Under the law, there are crimes such as theft, obscure fraud or other, "which makes the employee unworthy of the trust of the employer". At first sight, this requirement for loss of the employee's transition fee seems very urgent for the "urgent reason" that is required for resignation. An interesting question is whether a (legitimate) resignation always leads to the fact that no transition fee has to be paid.
Explanation
"In the bill was the deliberately chosen the new term ‘seriously liable’ and no connection was sought with the already existing term ‘urgent reason’. The situation that leads to an ‘urgent need’ does not always have to be attributable to culpability. For serious culpability there is more required than just an urgent reason," Says Minister Asscher.
The existence of an urgent reason for dismissal does not mean, by definition, that an employee who is rightly fired has lost his right to the transfer fee: an urgent reason shall be plea-full but not seriously plea-able.
Small Mistake
In addition, the court can also assign the transfer fee in full or in part to the employee. Even if the court finds that there is a seriously plea-full act by the employee. This possibility exists when non-awarding "standards of reasonableness and fairness would be unacceptable", for example, in case of a minor failure during long-term employment.
This was mentioned, for example, in this statement: A teacher of a high school had provided the correct answers to the student before the final test. The district court judge found this seriously plea-able, but also found that the employee was entitled to the transfer fee because he had been mistaken only once in his ten-year employment.
Conclusion
Even if the judge thinks that an employee is fired rightly, the court can grant a transfer fee.
Translated by Asta Kerkhoven
Source:
https://www.xperthractueel.nl/ontslag/betaal-je-transitievergoeding-bij-ontslag-op-staande-voet/?utm_source=xhra_20170807&utm_medium=email&utm_term=&utm_content=&utm_campaign=TripolisDialogue