Withdrawal of an application for dissolving an employment contract. And then?

Newsletter Employment Law.

An employer who has submitted an application to have an employment contract dissolved can subsequently withdraw it should he consider that the subdistrict court has awarded an employee an excessive level of compensation. A recent case in which an employee submitted his own request for his employment contract to be dissolved following the employer withdrawing his application turned into a costly affair for the employer.

Facts
Since 1974 the employee in question works for the employer as a reporter. On 2 June 2009, the employer seeks the dissolution of the employment contract on the grounds that the employment relationship has become untenable. The subdistrict court in Apeldoorn dissolves the contract effective from 1 July 2009 and awards compensation to the employee. As is required, the judge of the subdistrict court offers the employer the possibility of withdrawing his request for the dissolution. The employer does so and on 11 June 2009 informs the court and the employee of the  withdrawal of the application. At the same time, the employer lets the (representative of the) employee know by fax that the employment contract will be continued. The employer does not make clear how this will be put into practice.

Employee's dissolution request
The employee informs the employer that they do not agree with the proposal to return to work and to continue working in his service. The employee turns to the subdistrict court with a request to dissolve the contract on the basis of a higher level of compensation.

The judge rules that the employer, following the withdrawal of his request to dissolve the contract, has made no substantial or credible attempt to offer the employee a realistic opportunity to continue with their activities or to provide a different appropriate function within the organisation. The situation is thus not fundamentally changed, yet this was to be expected of the employer. In addition, according to the judge, in a desperate situation such as this it is not important with regard to the level of compensation which party submitted the request to have the contract dissolved. The judge believes that the employee's return to work is not a realistic option and they cannot be blamed for not accepting the employer's proposal to continue in service. Considering that the circumstances remain unchanged, the subdistrict court sets the level of compensation at that which had been determined in the ruling of 2 June 2009.

Second dissolution application
Following the employer withdrawing his termination request, the employee is free to submit their own application. The course of events following withdrawal of the request is important in the assessment of the dissolution request that the employee subsequently submitted. It is essential that an employer acts precisely and, especially, that he considers in advance what the (working) situation will be like once he withdraws such a request. Where an employer can show that he has paid serious attention to the return of the employee to his organisation, this may result in lower, or no, compensation being awarded in the event of a second termination request being submitted. This was not the case in this present dispute and, therefore, the level of compensation remained unchanged.