When an employee resigns in an emotional mood, such as in a conflict meeting, an employer should not be too quick to rely on it. This is evident from a Sept. 9, 2021 ruling by the subdistrict court judge of Gelderland District Court (ECLI:NL:RBGEL:2021:5488). A physician assistant resigned in an emotional mood because she felt left out of a team coaching program. She returned to this after three days, by which time the employer had confirmed the termination in writing. Was the employer allowed to hold the employee to that?
When an employee resigns himself, not only is he or she not entitled to WW because the employee then commits an act of detriment, but also he or she is not entitled to transition compensation.
Good employment practice: duty to investigate
Accordingly, case law has developed the line that the employee can only be held to a resignation when the employee declares it in a clear and unambiguous manner and the employer, if this can be doubted, should verify that the employee is aware of the adverse consequences of the resignation of, among other things, the loss of an unemployment benefit entitlement. The big question, of course, is when an employer should doubt this.
In the case of the physician’s assistant, the subdistrict court ruled that the employer could not trust that this was a deliberate choice by the employee because the employee’s behavior was clearly very angry and sad about feeling left out. By virtue of good employment practice, the subdistrict court indicated, the employer should have given the employee a few days of rest and reflection time, in other words, the employer should have protected the employee from himself. If there is no reason to doubt an unambiguous and clear resignation, the employer’s duty to investigate is either nonexistent or diminished. This is even more true if it can be shown that the employee was quite aware of the consequences of the dismissal or, for example, the employee only reconsiders the resignation after a considerable period of time.
A clear and unambiguous statement
When the employee resigns in a deliberate, unequivocal and clear manner, it can be confirmed in writing. Resignation is a unilateral legal act and does not depend on the employer’s consent. An employee’s notice period is one month. The disadvantage for the employer is that if an employee goes to litigation and wants to backtrack on a dismissal that was taken, if the employee’s claim is upheld, the employer must pay out wages for the period that litigation took place. This is also the case in the Sept. 9, 2021 ruling. The subdistrict court annulled the termination and obliged the employer to allow the employee to perform the stipulated work if the physician’s assistant had recovered and ordered the employer to continue paying the usual monthly salary plus 8% vacation allowance, year-end bonus and other emoluments as well as the litigation costs.
Notice of instant dismissal
It is therefore a clear and unambiguous statement. This also applies to dismissal for summary dismissal communicated by an employer to an employee. There, good employment practice and good employee practice apply equally. This was demonstrated, among other things, in a decision by the Den Bosch Court of Appeal on September 2, 2021(ECLI:NL:GHSHE:2021:2776). An employee who had only been employed for a few days was, in the opinion of the employer, underperforming. At some point, the employer said the employee “didn’t need to come back.” Employer and employee then engaged in a telephone conversation a few days later. This phone conversation was recorded by the employee. In the telephone conversation, the director indicated that he had “fired” the employee. This evidence, which the trial court took into consideration, and the fact that a paycheck was received with an “advance settlement” and no further call to come to work had gone out, meant that the trial court held that even the somewhat vague announcement “you don’t have to come back” by the employee could qualify as a summary dismissal. The reason for dismissal itself must then be properly stated. In this case, the issue was the employee’s performance. The court ruled that the employee was entitled to wages over the notice period and fair compensation of €1,000.00. It is therefore important that when an employee is summarily dismissed, the reason is clearly communicated to the employee and such dismissal is also confirmed in writing. When notified by the director, the employee had to reasonably assume that this was a summary dismissal.
It does follow from these two rulings that because of the consequences of a resignation or summary dismissal, the employee will be quick to protect against the loss of a transfer payment and the loss of a liability for unemployment benefits. One has been warned.
This contribution was written by mr. Rien Hoek, affiliated with the Employment Law Practice Group.
