Wet Few Security (WWZ)
The Work and Security Act (WWZ) has been the subject of all kinds of concerns among entrepreneurs / employers almost two years after its introduction. Criticism has not gone silent, and investigations are being waved to support the claim that the law's purpose has not been and will not be achieved. This usually means that more security would be created for employees by an increase in the number of open-ended contracts.
It is noticeable that another aspect of the WWZ in the media is not or hardly the subject of dialogue or criticism, and that is the change in the dismissal test and the introduction of the statutory transition payment. This although these are changes that have a considerable impact on business operations. Because when does malfunction occur or has an irreparably disrupted employment relationship arisen? And is there indeed a risk that the court will award a so-called fair compensation in addition to the transition payment?
First of all, don't be surprised at the existence of those questions. Until the introduction of the WWZ, the assessment by the court (or the UWV) was essentially different. The touchstone was so-called 'changes in circumstances'. That meant as much as if the judge thought it was better to terminate the contract, that in itself was enough. There was an obligation for the judge to justify this, but that was not much. And there was no appeal against the decision. In addition, with the subdistrict court formula from that time there was a clear tool in practice for 'buying off' the issue together.
We have to find our way 'together' and therefore especially look at how judges judge. With regard to dysfunction, it becomes clear that judges value positive intentions and a structured approach to improvement in the form of a written improvement plan. That plan must provide clarity about the shortcomings, expectations and communication in the process. But it is also important to have a clear term and clarity about the consequences if improvement does not occur, so that the employee knows where he stands. According to court rulings, it is not clear what the improvement period should be, but it is often at least three months. Get advice from an employment lawyer about this to avoid mistakes!
When it comes to the disrupted employment relationship, it is important to note that what is seen in practice by employers as an irreparable disruption is often not seen by judges as irreparable. Judges want employers and employees to do their best to seriously try to rectify things when things are not going well between them. For example through mediation and coaching. So beware: irreparable disruption is not readily assumed.
Finally, the fair compensation in addition to any statutory transition compensation owed. It is not awarded that quickly. Fair compensation is available for exceptions such as when an employer treats an employee really badly. In practice, of course, employers pay more in addition to the transition payment to avoid legal proceedings. In practice, no standard has yet been developed about how much that should be. Here too there is still a lot of uncertainty. The fact is that the fees are lower than before. This is positive for the employer!
Marc Vogel, lawyer and specialist for employment law at Arbor Advocaten