The First Decision Using the New Subdistrict Courts Formula
Dissolution to the Extent Required by Law
The decision of 30 January 2009 concerned a so-called
dissolution to the extent required by law. The employee was
summarily dismissed, but he declared this dismissal to be null and
void. The employer requested the dissolution of the employment
agreement in case the summary dismissal would not stand up in
court. The Subdistrict Court deals with such a request as if it
were a normal petition for dissolution and may therefore grant the
employee compensation in that case too.
The Facts
A 38-year-old employee had been employed with Adomex as a truck
driver for more than 17 years. Since February 2008 the employee had
been warned a number of times in writing for, amongst other things,
absence without leave, arriving late at work and situations of
carelessness, including leaving a bag with money unattended. On 18
December 2008 the employee was summarily dismissed after leaving a
bunch of keys with important keys for the company in the door of
the truck on 17 December 2008 (the "key incident"). In
the dismissal letter, reference was also made to the earlier
warning letters about his behavior as a ground for the dismissal.
Because the employee had declared the dismissal to be null and
void, the employer requested the dissolution of the employment
agreement to the extent required by law.
Subdistrict
Court
The Subdistrict Court had to assess whether the employee's
behavior constituted a serious reason on the basis of which the
employment agreement could be dissolved. The Subdistrict Court
primarily tests whether there is an urgent reason. The Subdistrict
Court established that the employee had not received any written
warnings during the first 15 years of his employment. Only two of
the warnings he received since February 2008 related to the
carelessness of the employee. In the opinion of the Subdistrict
Court, the key incident in combination with the earlier warnings
did not constitute an urgent reason now that during an employment
of 17 years an act of carelessness was committed only twice, and
without any intent. The Subdistrict Court ruled, however, that it
was understandable that Adomex had lost confidence in the employee
because he had failed in many ways. This constituted such a change
of circumstances that the employment agreement had to
end.
The Compensation
Since the petition was submitted after 1 January 2009, the
Subdistrict Court has applied the new subdistrict courts formula
for the calculation of the compensation. Next, the Subdistrict
Court made a detailed written specification of the calculation.
Rounded off, the employee had been in the employment for 17 years
and 5 months on the date of the dissolution. The employee was born
on 8 June 1970. For this reason 13 years (rounded off) fall within
the category up to 35 years of age and 4 years (rounded off) fall
within the category between 35 and 45 years of age. In view of the
culpability on the part of the employee, the C factor was set at
0.5. The labor market position of the employee or the financial
position of Adomex are not a reason to adjust the C factor and thus
influence the compensation for dismissal. If the neutral formula
would have been applied (C = 1) then the compensation is almost
seven monthly salaries lower than it would have been on the basis
of the old formula.