Explanation Meaning of 26-Weeks Period After Dismissal Permit From UWV Werkbedrijf
Court of Appeal of Leeuwarden, 13 April 2010, LJN
BM8411
Legal Framework
Article 4:5 of the Dismissals Decree provides that if the UWV
Werkbedrijf grants permission to terminate an employment agreement
for reasons of business management, this may be made subject to the
condition that within 26 weeks of the announcement of the
permission granted, the employer shall not employ any employee to
do work of the same nature, unless the employer has given the
dismissed employee the opportunity to resume his former tasks on
the usual conditions of the employer. In this case,
'employ' is also understood to mean the appointment of
part-time employees or the hiring of temporary workers. If the
employer does not meet this condition, the employment agreement
will be regarded to have been terminated without the permission of
the UWV Werkbedrijf. In that case the dismissal is voidable, which
may have the effect that the employee has remained employed
retroactively and may lay claim to wages starting from the date of
dismissal.
The Case
An employer has applied to the CWI (now called the UWV
Werkbedrijf) for a dismissal permit for its employee (the
'Employee') for reasons of business management. The work of
the Employee consisted of operating the so-called roll punching
machine 2. This position was not mutually exchangeable with
operating the roll punching machine 1. The employer argued to the
CWI that the two roll punching machines could be operated by one
employee, but that this Employee was not suitable for operating
both machines. The CWI held that the position of the Employee was
indeed not mutually exchangeable with the position of the employee
who operates both roll punching machines 1 and 2, and therefore the
CWI gave the employer permission to terminate the employment
agreement with the Employee. This permission was made subject to
the condition (referred to below as the 'Condition of
Re-Employment') that within 26 weeks after the day of
announcement thereof, the employer could not employ any employee to
do the work of the Employee without first having given the Employee
the opportunity to resume that work. The employer then gave notice
of termination of the employment agreement.
The Employee then sent a letter in which he relied on the
voidability of the termination. The Employee argued that within 26
weeks of the announcement that the dismissal permit had been
granted, the employer had hired temporary workers who were doing
work comparable to his former work. After the Subdistrict Court of
Groningen had denied this claim, the Employee lodged an
appeal.
Court of Appeal of Leeuwarden
The Court of Appeal of Leeuwarden ('the Court of
Appeal') considered that the decisive factor to determine
whether the employer had breached the Condition of Re-Employment by
letting the temporary workers work also after the Employee's
dismissal was whether these temporary workers were doing 'work
of the same nature' as the Employee was doing. In the opinion
of the Court of Appeal, this is the case if another person fulfils
the original position of the Employee. In other words, it is not
sufficient that other persons fulfill some subtasks of the original
job of the Employee, but their position has to be mutually
exchangeable with the former position of the Employee. The Court of
Appeal also considered it completely irrelevant to the question of
whether the Condition of Re-Employment was breached whether other
persons are doing work that the Employee could also do. The Court
of Appeal arrived at the opinion that the Employee had not proven
that the core task of the Employee - operating the roll punching
machine 2 - had been taken over by a temporary worker or a newly
hired employee. Consequently, the Court of Appeal upheld the
Subdistrict Court's judgment.
Tips:
- If the UWV werkbedrijf grants a dismissal permit under the
Condition of Re-Employment, the employer is basically not
allowed to hire someone else within 26 weeks to do work of the
same nature. This prohibition extends to the hiring of
temporary workers and the employing of part-time
employees.
- An employer may have other persons perform some tasks of
the dismissed employee, as long as the position of those others
is not mutually exchangeable with the former position of the
dismissed employee.
- Mutually exchangeable positions are positions that are
comparable as to job content, knowledge and skills required and
competences required, and are equivalent as to level and
remuneration. This criterion purely concerns the
exchangeability of the positions, not of the employees. The
personal suitability of an employee to fulfill the position of
another employee plays no role here.
- If the employer keeps temporary workers or employees in his
employment who do work that the dismissed employee could also
do given his suitability, this is not contrary to the Condition
of Re-Employment, as long as the positions are not mutually
exchangeable. However, it could be argued that an employer is
not acting as a good employer if he does not offer the employee
who was dismissed for reasons of business management the
position of a temporary worker, if that dismissed employee is
suitable for that position. So in spite of everything, prudence
is in order.