Rescission During the Notice Period Possible in Exceptional Cases
A discussion of the judgment of the Dutch Supreme Court of 11
December 2009 (JAR 2010, 17)
Application for Rescission During Notice Period
In practice it often occurs that after an employer
gives notice of termination of the employment agreement, the
employee submits an application for rescission of the employment
agreement to the Subdistrict Court still during the notice period,
to obtain compensation on the basis of the subdistrict courts
formula. In the judgment at issue here, the Dutch Supreme Court
rendered an opinion on this practice. Also, in this case the
employer tried to frustrate the rescission proceedings by giving
notice of termination of the employment agreement for a second
time, this time as of an earlier date. The Supreme Court also
rendered an opinion on this possibility.
Facts and Course of the Proceedings
On 30 September 2008, after permission of the UWV Werkbedrijf, the
employer gave notice of termination of the employment agreement
with the employee as of 1 January 2009, with due observance of the
notice period. Subsequently, on 10 November 2008, the employee
submitted an application for rescission. Next, in a letter dated 19
November 2008, the employer once again gave notice of termination
of the employment agreement as of 1 December 2008, without
observing the notice period. The Subdistrict Court rescinded the
employment agreement as of 29 December 2008 and granted the
employee compensation. In the appeal proceedings the employer
argued that by doing so the Subdistrict Court had stepped outside
the scope of application of the legal basis for rescission, since
the employment agreement had already ended as a result of the
second notice of termination. The appeal was rejected, after which
the employer appealed to the Supreme Court.
The Supreme Court
In cassation the Supreme Court considered that the rescission of
the employment agreement during the notice period is possible, in
principle, but only if there is such a change of circumstances that
the end of this employment agreement cannot be awaited. Therefore,
there must be serious reasons for the employee as a result of which
the employment agreement should end earlier.
With respect to the compensation to be awarded in such an event
the Supreme Court considered that the compensation must be
calculated in the light of the fact that the employment agreement
already ends as of the date as of which notice was given. Thus, the
Supreme Court seems to suggest that the severance payment should be
calculated according to the criteria of a manifestly unreasonable
dismissal and therefore not on the basis of the subdistrict courts
formula. However, the judgment does not provide a lot of clarity in
this respect. We will have to wait and see how Subdistrict Courts
will deal with this.
Finally, the Supreme Court deemed the second notice of
termination by the employer as of an earlier date not to be legally
valid. The employer was only allowed to reconsider the first notice
of termination - a unilateral juridical act - with the employee's
consent. There was no such consent. Moreover, this second notice of
termination can be regarded as an abuse of authority, since the
only purpose of this second notice was to frustrate the rescission
proceedings initiated by the employee. The Supreme Court rejected
the appeal.
Tips:
- An application for rescission by the employee after notice
of termination has been given by the employer only has a chance
of success if there is such a change in the circumstances that
the employment agreement should end earlier.
- In two recent judgments the Subdistrict Courts of Zwolle
and Breda ruled (LJN: BK8267 and BK9210) that quick certainty
about the (financial) consequences of the dismissal could not
be regarded as such a change of circumstances. In the event
that the notice of termination leads to a strained employment
relationship, this could be different. However, the Subdistrict
Court of Maastricht (LJN: BL4278) ruled that the mere fact that
the employer had applied for a dismissal permit for the
employee did not entail that the employment relationship had
become strained.
- A second notice of termination as of an earlier date by the
employer is not legally valid, unless the employee has agreed
to the withdrawal of the first notice of termination.
Furthermore, the second notice of termination may not have as
its only purpose to frustrate the rescission proceedings
initiated by the employee.