Supreme Court, 22 June 2012 (LJN: BW5695)
The Extraordinary Labor Relations Decree 1945 (Buitengewoon Besluit Arbeidsverhoudingen 1945 ('BBA')) stipulates that an employer may only give notice of termination of the employment relationship with an employee after obtaining the prior consent of the UWV and therefore after obtaining a dismissal permit. However, the employer does not need to obtain this consent if he instantly dismisses the employee (with good reason). If subsequently the employee contests the validity of this instant dismissal, the employee will have to reverse the notice of termination (the instant dismissal). Pursuant to Article 9 (3) of the BBA, the employee must do so within six months (the 'expiry period').
There may be situations, however, in which it is impossible for the employee to reverse the instant dismissal within the expiry period of six months. For instance, this may be the case when the employee's mental faculties have been seriously disturbed during the period after the dismissal. In the present case the Dutch Supreme Court has expressed an opinion on the question of whether the expiry period pursuant to Article 9 (3) of the BBA may be deviated from in such a case.
The employee was employed by ABN AMRO ('ABN') since 1997. At the end of 2003 the employee had the first symptoms of schizophrenia. There have been consultations in this respect between the employer, his mother and the manager of ABN and the general practitioner. At the beginning of 2004, the general practitioner reported a crisis to Mentrum, an institution for mental health care. Shortly thereafter the employee had a vacation. However, after his vacation the employee did not come to work anymore. On 1 March 2004 the employee's sister informed the employee's manager that the employee had informed her that he would not go to work, because they were playing a game with him. In a letter dated 3 March 2004, ABN called the employee to work. One day later, on 4 March 2004, the employee was instantly dismissed because of absence without leave.
Next, from 27 January 2005 until 18 July 2005 the employee was compulsorily admitted to a psychiatric hospital. On 14 September 2005 the employee's representative reversed the instant dismissal. ABN relied on limitation and argued that the employee had reversed the instant dismissal too late. The Subdistrict Court ruled in favor of ABN, after which the employee lodged an appeal.
Judgment of the Court of Appeal of Amsterdam
The Court of Appeal of Amsterdam first and foremost ruled that the instant dismissal had been wrong, since ABN was aware that the employee suffered from a serious mental illness, knew that this illness was the cause of his behavior, and also knew that the employee was not able any more to assess his own behavior adequately. According to the Court of Appeal, in view of these facts it could not be argued that it could not reasonably be required of ABN to have the employment agreement continue.
Furthermore, the Court of Appeal ruled that the employee's reliance on the reversal had indeed not been made within the period of six months prescribed by Article 9 (3) of the BBA. However, according to the judgment of the Court of Appeal, ABN was aware that the employee suffered from a serious mental disease, knew – or should know – that his judgment had become seriously obscured, and was aware that his family made every effort to have him admitted to a psychiatric clinic. The Court of Appeal is of the opinion that it is plausible that the employee was not able to rely on the reversal of the dismissal within six months. In view hereof the Court of Appeal ruled that according to the standards of reasonableness and fairness, it was unacceptable to attach the conclusion to the expiry of the six-month period without using it that the employee could not rely on the reversal of the dismissal any more. That is the reason why, according to the Court of Appeal, the employment agreement continued to exist after the (invalid) instant dismissal. ABN appealed to the Supreme Court.
The Supreme Court
The Supreme Court found for the employee and ruled that it follows from the law and case law that reasonableness and fairness may prevent a party to an agreement from relying on a rule in force between the parties (in this case the expiry period of Article 9 (3) of the BBA), as far as in the given circumstances such reliance would be unacceptable. The Supreme Court did remark in this respect that a Court has to observe reticence in the adjudication of a reliance on reasonableness and fairness. This is even more true in cases of mandatory law, such as the expiry period of Article 9 (3) of the BBA in the present case.
The Supreme Court therefore recognized that the period of Article 9 (3) of the BBA must be strictly observed, since this period protects the interest of the employer if there is certainty about the validity of the dismissal. In the opinion of the Supreme Court, the Court of Appeal has not failed to recognize this either. However, the Court of Appeal saw reasons to rule in this case that the reliance of ABN on the expiry period is still unacceptable according to the standards of reasonableness and fairness. The Court of Appeal elaborately substantiated this judgment and moreover observed the necessary reticence. In short, the judgment of the Court of Appeal – that ABN could not rely on the expiry period of Article 9 (3) of the BBA – was upheld by the Supreme Court.
If an employee is instantly dismissed in a situation in which the employer is aware – or should be aware – that the employee suffers from a serious mental disease or that his judgment is seriously disturbed for another reason, it is advisable to request the Subdistrict Court to rescind the employment agreement to the extent required (also called a 'conditional rescission') after the instant dismissal. If in that case the employment agreement is rescinded, the employer will have the certainty that the employment agreement has ended at a certain moment.
First published in the Kennedy Van der Laan newsletter - July 2012
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