Hi there,

I have been working as a permanent employee with a major Telco company and they have recently approached me with a settlement package. The reason they say is due to 'lack of work'.

Does anyone know if this is LEGAL under Dutch Employment law? Any material I can read?

Thanks,
Highlander

First, sorry for your situation. When one door closes ... another (you know the rest!)

Second, I will give you the advice I've read many times before - DON'T SIGN ANYTHING!

You need to contact a Arbeid lawyer (?) and pay him to negotiate a deal for you. The company will ALWAYS go the cheapest way. You have to pay the lawyers fee yes, but the payments will be far offset by the kind of package he can wangle for you.

GET CRACKING!!! And Good Luck!

I haven't signed, but thanks for the heads up ;-)

I'm currently talking to a lawyer specialising in Dutch Employment Law as we speak... asking for a quote as they're around 200 euros an hour.

My settlement package is 3 months wages... I've been working with this company for 4 years. I the reasoning was better than 'there's not enough work' I would take it..... it's I feel, in principle, that it's unjust and wrong for a long serving perm employee.

....but what happens if I dont sign by the end of the 1 months notice they're giving me?? Have you been through this before? know anyone who has?

Thanks,
Highlander

Dude, get a lawyer.

I haven't been through tis before - no, I have just HEARD and read stuff.

Basically, they cannot force you to sign.

IMO 3 months salary is too low if you have been there 4 years. There are a few websites out there that calculate what you should get. I forget the names but basically you enter your age, salary, and years of service and it comes back a number range. If they let you go because of your own fault you tend to get the lower number in that range. If you are let go because of the company's fault .. the number is toward the higher end of that range.

If you hire a lawyer, he will make sure you get as much as possible from that range based on the options available.

Anyway the lawyer is the one that can fight for you it give you as much as possible - LET HIM GUIDE YOU no matter what the company says. The company doesn't give a hoot about your well-being .. they just want to move you on so don't trust them ... trust your lawyer.

But don't they need a permit from CWI to fire a permanent employee? Or they go that way only if you reject their settlement package?

Firstly to ouloveit1 ... thanks for the info.. this is very much what i'm persuing as it stands (lawyer, etc) and I will NOT SIGN diddly. I was given the settlement package because the COMPANY (as a whole) has caused delays in the said project... not because of any wrongdoing on my part (not at all). I wouldn't be fighting this and wasting peoples time if I knew I had done something wrong.

To sbs... that's a very interesting point and one that continues to swirl around in my mind. I've NO IDEA what the implications for NOT signing are (deadline for signing is September 11th would you believe it).

Furthermore, doubt they would get any permit from CWI to fire me based on simple "projects delays"..... especially in holland!!!!! ???

Hi Highlander,

As ouloveit1 mentioned, do not sign any document concerning your termination.

What are the termination terms and conditions mentioned in your employment contract or collective labor agreement (CAO – arbeidsovereenkomst). Does your company have a CAO ?

If an employer wishes to terminate an employee’s employment contract against the wishes of that employee, the employer must adhere to a strict procedure. The employer can apply for a dismissal permit from UWV WERKbedrijf (former CWI) or ask the subdistrict court to dissolve the employment contract. The way in which the dismissal procedure is completed depends to a large extent on the reason for dismissal.

An employer must have good reasons to dismiss you. You cannot be fired just like that. Reasons for dismissal - You can be dismissed:

• for (business) economic reasons, for example if a reorganisation is taking place or a company is closing down or relocating. It can also happen when part of the company’s activities are being closed down;
• if you do not perform well or are no longer suitable for the job. But if this is the result of illness, you cannot be fired. Note: your employer must repeatedly have pointed out that you are not or insufficiently performing, preferably in an appraisal or performance interview. You must be given time to improve your performance;
• f there is a conflict with your employer and the relation between you and your employer is beyond repair;
• if you have serious conscientious objections to your duties and your employer is not able to offer you a different job or suitable work;
• if you are long-term occupationally disabled;
• for improper conduct, for example if you forge certificates, threaten colleagues, endanger yourself or others or if you do not observe the duty of confidentiality; if you steal, refuse work without good reason or come to work drunk;
• if you and your employer mutually agree to the dismissal.
• Your employer can only fire you:
• when he has a dismissal permit from UWV WERKbedrijf (former CWI);
• if he goes to court to dissolve your employment contract;

If you received a dismissal notice from your employer and if you disagree with your dismissal, you must lodge an objection with your employer. You must do this in writing. You can consult your legal aid insurer or the Juridisch Loket (free legal advice) or the trade union or a solicitor. Your employer can then apply for a dismissal permit at UWV WERKbedrijf. He can also take the dismissal to the courts.

When employer contacts UWV WERKbedrijf for dismissal permit, UWV WERKbedrijf will ask you (in writing) reasons for your objection. After receipt of your reasons, if UWV WERKbedrijf still issues dismissal permit to the employer, you still can go to court with objection.

Since you have a permanent contract, apart from termination benefits (1 month salary for 1 year), you can, through legal aid, negotiate with the employer to offer you an Outplacement support. Outplacement period can be 3 or 6 or 9 months where an assigned Outplacement agency can assist (transition service) you to get another employment.

Outplacement companies will usually provide a mixture of the following:

• Career counseling, profiling and individual assessments of your potential and key strengths
• Help with writing and producing your CV
• Counseling on issues such as finances, or emotional responses to redundancy
• Help finding a new job, access to job-hunting tools: the internet, recruitment directories, newspapers etc
• Group seminars and workshops on options such as starting your own business
• Help with networking

You are free to contact Juridisch Loket to seek legal advise, free of charge. You may call them on 0909 8020 to make an appointment at their nearest branch in your area.

Goodluck!

Very nice mallu.

I knew there was a lonnng legal proceeding ... I just was not clear to me all that it entailed.

I will have to copy your text for reference.

Mulla, I am talking to my lawyer currently so we'll see where it takes me (I continue on monday). Thanks for the very deep insight into the world of Dutch Employment Law. I will also take a copy of this for future reference. (thumbs up).

The only thing I don't quite understand is that this settlement agreement is, by it's definition, an OFFER!!!! What happens if I don't accept it by the deadline of September 11th? I mean what happens if I don't sign?

note: It states in the settlement (which I have NOT SIGNED) that my permanent contract ends Oct 1st.

They are telling me that the reason for 'offering' the settlement is due to 'project delays'.... but in the settlement itself they've stated the folllowing:

'd. the employment contract will be terminated due to a difference of opinion on the job content. The employee is not dismissed for urgent cause;'

I am about to recieve legal assistance from a law firm called Blenheim in Amsterdam. You know them? It will cost me 200Euros an hour (starting late Monday afternoon). Is it worth contacting Juridisch Loket to at this stage?

Guys, you've no idea how much I appreciate your feedback. Have a great weekend.



oh btw, and I haven't received a dismissal notice from my employer.

Mulla, the only item that comes close to my situation when discussing reasons for dismissal is the following:

-> for (business) economic reasons, for example if a reorganisation is taking place or a company is closing down or relocating. It can also happen when part of the company’s activities are being closed down;


I say this because they are stating project-delays as a reason to let me go... but there are NO PROJECT DELAYS.... we are meeting our deadlines bang-on. :-/

I'm now starting to wonder if this is just boiling down to the fact that maybe I'm too expensive and that they want ot cut costs.

Hi Highlander,

I assume you received settlement agreement from your employer without your knowledge (not mutual). So for the employer this is like an offer and it is up to you to accept or reject it. Your employer cannot do anything if you reject this offer. Of course, employer can approach UWV WERKbedrijf for dismissal permit process (or district court to dissolve your employment contract) as I mentioned above.

Since you are not signing the offer, your employment contract won’t end on 01 October.

They told you the reason ‘project delays’ but in their offer something else is stated (difference of opinion on the job content). So I don’t think your employer has any valid reasons. They are conflicting with their own statements.

Although you have sought legal assistance through a law firm, you are free to contact Juridisch Loket anytime, for a second opinion.

Do you know if ‘rechtsbijstandverzekering’ (legal assistance insurance) included in your insurance package ? If yes, contact your insurance company (on Monday morning itself) to seek legal assistance through them. This way you don’t have to pay 200 Euros for a lawyer.

Comments on your post #11:

If your employer wants to terminate your contract based on “for (business) economic reasons……”, they have to prove this through several documents including financial statements, to UWV WERKbedrijf. Well, it is not that easy for an employer…

Since there are no project delays as indicated by you, I am skeptical that your employer has any justifiable ground to terminate your employment contract.

Checkout this website (Dutch) gouden handdruk (golden handshake). Kantonrechtersformule, this is the formula which will be used by the district judge incase this case goes to the court. You can make your own calculation and see how much you can get from the employer incase of dismissal. I am sure, you will also hear from your lawyer about this ‘Kantonrechtersformule’.

I have to warn you, since you are not signing the offer, things can get ‘ugly’ in the coming days. So be brave, fight for your rights. I wish you loads of strength and courage because you will need them.

And keep us posted on the status which can be beneficial to others on the same boat.

Thanks Mallu .. you're feedback is like gold to me!! ;-)

Everything you are stating is exactly what I've been thinking.... i.e if I dont sign then my contract doesn't terminate on Oct 1st but then it could get ugly, etc.. and also the conflicting statements as to why they are trying to settle with me. My lawyers find THAT bit the most illogical part of this whole affair.

I'll sit down tonight with a glass of wine and go over all your info/URLs, etc then I'll get moving first thing Monday morning. If I can get free advice then that would save me a heap of money so thanks ever so much for this in particular.

I'm not going to stress out about this though as I refuse to let them get to me. At the end of the day I can only fight my corner with my principles and morals intact, whatever the outcome!!

You'll no doubt be hearing from me sometime Tuesday/Wednesday (thumbs up).

Have a great Saturday/Sunday folks.

Bedankt,
Highlander.

Hi Guys,

Please see below for the WHOLE picture of what has happened over the course of the last 6 months. I didn't provide you with ALL the information in previous posts because I didn't want to convolute/confuse the conversation (I initially wanted to know where I stood with the recent approach... whether it was legal, etc ... but seeing as you guys seem to know your stuff I'd like to give you some more background).

Please could you digest the following information and let me know if there are clear grounds for me to take this further. (I have given the entire story to my lawyer also). Thanks, Highlander

=================================================
Back in late March I was suddenly, and without prior notice, approached by my onsite manager. I was told that I had two options 1) To accept a settlement offer (this was supposedly given to me based on performance/time issues however there was no basis for this WHATSOEVER. Not then , not before then, and not now). Option 2 was that I was to be placed on a performance program.

NOTE: No information was available relating to either option during the above mentioned meeting or since then.

I was left extremely disappointed and dismayed by the approach not to mention the extreme levels of stress I endured, and have continued to ensure since. I felt that I was being harassed personally by my manager.

The incident was raised with my HR department just hours after I was approached by my manager. I was promised time and again that the matter would be dealt with. I have had absolutely NO ASSISTANCE NOR FEEDBACK from HR concerning this issue even after 3 or 4 follow-up requests/emails (I gave up with them after 50 days or so) and every time I called I was told the relevant people were busy. Please note that during that incident I personally done everything possible to communicate with HR and my manager in the US to resolve the matter internally (based on the certainty that I had done nothing wrong). HR have made NO EFFORT to communicate with me and assist me in resolving the issue at hand and as far I'm concerned it STILL hasn't been dealt with.

Given that I have been given yet ANOTHER settlement offer as of last week by HR (based on supposed project delays). Furthermore, I'm being told the reasons for having been given the settlement are due to 'major' project delays, however there is a totally different reason stipulated in the settlement itself surrounding my termination of contract (thus my company give conflicting statements).

I very much believe now that I'm being personally harassed.

This latest settlement offer consists of 3 months wages. I am on a permanent (indefinite period of time) contract and have been with this company for 3.5 years.
================================================

Please feel free to ask ANY questions (and before you ask, yes, I have written proof to back up all my arguments).

Thanks
Highlander

Hi Highlander,

You have to think what is better for you ? In my point of view, if this case goes to court and you win, will you be comfortable continuing your career with this employer ? I don’t think so. Since your employer has shown interest in letting you go, it is better for you to leave this employer and move on… But try to make a good deal and get a fair compensation package with the help of a lawyer. Try to get Outplacement support in the package. And you will also be eligible for WW allowance.

I agree.

If they don't want you there ... there's no sense in trying to keep your job. I mean what kind of a working environment would that be anyway?

Noooo .. but if they want you gone, fine but then they are gonna have to PAY! And that should be your focus.

I have a call with the Juridisch Loket at 2:15 (CET+1) so we'll see how that goes.

Will let you know.

Thanks,
H

Ok ... so I called the lawyer from Juridisch Loket and he tells me that it's not worth taking this to court as it seems I'm being let go for economic reasons (I learnt today that 10 other folk in the U.S were let go), and not for the incident back in April.

He stated that if I don't have to sign the settlement my company would likely do one of three things:

1) Nothing (and that they would wait for me to do something wrong... which hasn't happened so far, and won't happen of course).
2) Take the case to VWV (as Mallu said this would be difficult)
3) Take it to a judge via district court (to which I'll probably end up with the same settlement). Do you guys know what the process is for this? How long does it take? How much hassle for employer, etc?

......he also stated that by giving me 3 months wages my company are effectively giving me DOUBLE than what they need to. Being 31 years of age I'm only entitled for 0.5 months wages for every year I've been there (1.5 months in total).

After digesting his advice I'm now starting to wonder if going to court is indeed worth it.... or whether I should now opt to negotiate the settlement with my HR department.

Thoughts and further advice welcomed.


Thanks,
Highlander

Correction: I meant UWV WERKbedrijf, not VWV.

There it goes.. despite very frequent advices to go to a lawyer, one in such situation is doomed to loose this fight. So what if you manage to get a few hundred or couple of thousand more in settlement, that too after puting up a struggle. If viewed comparatively, the organization has nothing to loose while the social, personal implications for employees are tremendous. These corporations run for scheming millions to feed top executives and already rich stakeholders. Come on UWV, give me a break, we are human, these corporations are not.
HL, I think it will be in your interest to try to negotiate a better deal and move on, however helpless it sounds..

Umm you are 31? That's young and with 3.5 years of service ... um I would take the advice of the Lawyer then and let it go.

I think he's right about the .5 thingy .... I assumed you were older.

Take care.

Hi Highlander,

1)
As you indicated this option can be difficult for your employer.

2)
This link shall take you to the brochure (Dutch) from UWV WERKbedrijf, for dismissal due to economic reasons. I don’t think your employer shall go for this option either as I believe they don’t have any valid reason(s). Apart from the compensation, UWV WERKbedrijf may ask the employer to offer you a social plan (Outplacement) since the employer is the cause of dismissal. It is like UWV WERKbedrijf is asking your employer to help you to find another job. Fair, right ? Economic reasons at your company in the US, may not have any influence on their dismissal process in the Netherlands.

3)
This can be a tedious process for both the employee and the employer, throwing mud at each other. Once the court process begins, employer can stop paying your salaries until verdict. And the employer can drag the case to months and months. Eventually, the court shall use ‘Kantonrechtersformule’ for calculation of compensation package for the employee.
The right dismissal compensation:
Per worked year for the employer you should get:
You’re not yet 35 years - 0,5 bruto month salary
35 until 44 - 1 bruto month salary
45 until 54 - 1,5 bruto month salary
55 onwards - 2 bruto month salary
The compensation is the bruto monthly salary, plus 8% vacation money and other regular components (13the month, bonus or profit sharing, etc.)

See if you can negotiate the termination agreement with your employer including the offered financial settlement. This will always be a better solution than going to court. Below are a few points for your thoughts:

a)
The agreement has been made on initiative of your employer.

b )
In the agreement may not be mentioned that you employer is firing you on urgent reasons. If you are dismissed with immediate effect, you are not entitled to a benefit according to the Unemployment Insurance Act (WW benefit).

c)
In the agreement shall be mentioned that during the valid notice period, you will be paid fully (salary plus emoluments) even though you don’t work after signing the agreement.

d)
In the agreement shall be mentioned that from the moment of signing the agreement until the end of the valid notice period, you will get paid fully without work obligation.

e)
In the agreement shall be mentioned that the employer at the end of the employment contract, will pay out all open vacation days and the vacation money.

f)
In the agreement shall be mentioned that you’re no longer attached to a possible competitors-agreement if it is mentioned in your employment contract.

g)
In the agreement shall be mentioned that your employer doesn’t get any money back from you regarding followed courses/educations on his account, or any other reasons, if it is applicable in your case.

h)
In the agreement, your employer obligates himself to give you a positive reference

i)
In the agreement may be mentioned that you, as employee, will not object to the dismissal by asking for annulment. Simply said: you accept the dismissal initiated by the employer.

j)
In the agreement your employer obligates himself to fulfill all formalities necessary for applying for your WW-allowance, as soon as possible.

k)
Outplacement support shall be provided to you in order to find another work.

l)
In the agreement should be mentioned that if employer doesn’t follow up one or more obligations from this agreement, he will pay the lawyer- and reimbursement costs to the employee

Try to gather any other things that you can put on the negotiation table. Let the employer know what they are doing is not right. Employer should take the initiative for dismissal (and you agree upon it by signing the agreement). Agreement shall be made mutual. You shall be set free from work after signing the agreement.

Hope above info help for the moment.

Mallu, that is very informative, since you happen to give such knowledgable and well structured advise, could you elaborate more on the "outplacement assistance", is this purely a financial support? Asking specifically in regards to requirement to leave the country for a 5yr residence permit holder (non-EU) within 3 months if no other job is found. With the current scenario of labour market, is there also a provision in a settlement package to negotiate more time to look for new job?

Wow .. great info Mallu.

Hi sps,

Outplacement is generally offered by an employer to those employees who have to leave because of economic reasons or long (partial) sickness, etc. (employees that have to leave because of not their fault).

Usually employers assign certain Outplacement agency to assist their employees to optimize transition and redeployment process. Duration of Outplacement shall be set by the employer, 3 or 6 or 9 months. These Outplacement agencies won’t promise a new job within this duration but they will help, counsel, train and equip these employees with job hunting tools to find suitable opportunities in the current employment market. They can also introduce one to their job seeking network. These agencies are obliged send progress reports to the employer.

Regarding your specific questions:

• Well this is not a financial support offered by the employer directly to the employee. Employer pays to an Outplacement agency and government reimburses some fund to the employer through tax return.
• Yep, Outplacement can be included in a settlement package. Of course, one can negotiate with the employer to get more time to seek new job. But still it depends on the employer, it is their call.

nice info Mallu. i was recently made redundant (signed papers last week) and the info pretty much agrees with what i received from my lawyers.

first time i've been please that i am over 35 years old lol.