Going AWOL justifies (summary) dismissal

Employees cannot in principle have their employment contract legitimately terminated by their employer without their written consent unless the scenario at hand is one of summary dismissal, for which the employer must have urgent cause. The summary dismissal of an employee involves the employer in question notifying the sacked employee accordingly without delay, on disclosure of the urgent cause.

The Sub District Court in a recent ruling determined that an employee who without his employer’s permission had gone on holiday during his reintegration period had given his employer urgent cause for being summarily dismissed. The point of departure as per the Netherlands Civil Code is that it is up to the employer to fix the starting and finishing dates of the employee’s holiday leave in accordance with the employee’s preferences where the employer has no important reasons to depart from said preferences. If the employer does have important reasons not to go with the employee’s preferred dates, he or she will have to notify the employee accordingly in writing within a two-week period of the date at which he or she was first advised in writing of the employee’s preferred dates, on pain where he or she fails to do so of the employee’s holiday leave being deemed to have been fixed in accordance with the employee’s wishes. The legal action in question revolved around an employee who after an 18-month sick leave had regained a certain level of fitness for (suitable) work, to which he was scheduled to return shortly. The practical arrangements had already been made, it having been for this reason that the employer had turned down the employee’s holiday leave application.

There are sanctions other than summary dismissal – such as docking the employee’s pay –an employer can resort to when an employee flouts his or her reintegration commitments. An employee’s refusal to perform suitable work does not justify his or her summary dismissal. The dispute at hand involved the employee having gone AWOL rather than having refused to return to (suitable) work. It was this which had given his employer urgent cause for his dismissal, the underlying argument being that an employer should be able to rely upon the members of his workforce abiding by the agreements including where the employee in question happens to be, or have been, occupationally disabled.

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Dutch version: Ongeoorloofde afwezigheid reden voor ontslag