The reason for this remarkable court ruling is the case of cleaning company Victoria. The cleaning company employed an employee who worked in two locations for 10 hours a week each. After criticizing her performance at one of the locations, the employer had made a proposal for her placement at another location. Because the employee refused, Victoria asked the judge to terminate the employment contract. The subdistrict court rejected the request for dissolution. On appeal the dissolution was still awarded; the employee's counter-request on the employment contract to be partially dissolved was rejected. The employee went to the Supreme Court, but has been unsuccessful.
The Supreme Court ruled that the employment contract cannot be partially dissolved in a termination procedure of the employer. This is contrary to the legal system of dismissal law. Partial termination of the employment contract may change in the future, whereby the Supreme Court refers to the advice of the so-called Borstlap Committee. But that is the task of the legislator, according to the Supreme Court.
So far so good. However, the Supreme Court subsequently explains in a number of considerations superfluously that the employment contract can be terminated in part by employer and employee in other ways, possibly with a partial transition payment. The Supreme Court lists the following five cases:
- A termination agreement
- A dismissal followed by an amended employment contract (so-called amendment dismissal)
- A partial dissolution due to default
- The employee's obligation to agree to an amendment to the employment contract due to good employment practices
- The employer's obligation to agree to a proposal to amend the employment contract by the employee under the Flexible Working Act or on the basis of good employment practices
The obligation for an employer to accept a reasonable change proposal from the employee is remarkable and groundbreaking. It is the first time that the Supreme Court has commented on this.
When are you obliged to accept a reasonable change proposal from the employee as a good employer?
According to the Supreme Court, this depends on all circumstances of the case, such as, for example, the nature and content of the agreed activities, the circumstances invoked by the employee and the circumstances within the employer's company.
The employee can also make the proposal as a defense or conditional counter-request in a dissolution procedure of the employer. This may lead, according to the Supreme Court, that the request for dissolution of the employer, which is considered to be permissible in itself, will still be rejected by the court, because on the basis of the employee's reasonable change proposal, the employment contract can be partially maintained. There may therefore be a right to a partial transition payment, whereby the Supreme Court refers to the criteria from the so-called Column ruling: the legal requirements for the right to transition payment must also be met, and furthermore a structural and substantial reduction of the working time of at least 20%, which is expected to be permanent.
It is not yet possible to predict the impact of this Supreme Court ruling on practice. Not every employee proposal will be a reasonable one that the employer must accept as a good employer. It is clear, however, that in addition to the relocation obligation, employers must carefully examine the proposed alternatives of the employee before an employee can be fired. Employees will be able to make such proposals to strengthen their negotiating position in the event of intended termination of their employment.
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