The case
The employee had a fixed-term employment contract, under which he worked 32 hours a week and was to spend 8 hours per week at school. But in January 2016 it became apparent that the employee regularly skipped school and had attended only 2 of his 12 course days in that school year. He had lied to his employer all those months.
His employer gave him a firm talking-to. He had intended to summarily dismiss the employee, but the employee asked whether he could resign instead. The parties then drew up and immediately signed a letter of “resignation at the employee’s request”. Two days later the employee’s advisor informed the employer that the employment had not been terminated by mutual consent and that, if the employee had agreed to the termination, that agreement was revoked in accordance with the statutory cooling off period of 14 or 21 days. That statutory cooling off period was introduced when the Work and Security Act entered into force.
First, the subdistrict court judge was requested to annul the termination and to issue a declaratory judgment that the employment contract had ended by operation of law on the original date of termination. The judge found that the resignation constituted termination by mutual consent, that the statutory cooling off period of 21 days applied and that the employee had retracted his resignation within that period. The employment contract therefore revived until the date on which it was originally to end by operation of law.
Termination by the employee or termination agreement?
The employer filed an appeal against the judgment, in which the parties continued to quarrel about the legal qualification of the letter. The Court of Appeal did not consider that qualification particularly relevant and on that ground ruled as follows.
If the letter must be classified as a termination agreement, as the subdistrict court judge had found, it was revoked in a timely manner. The termination agreement is then deemed to have been dissolved, as a result of which the employment contract revives.
But if the employee’s letter constitutes termination by the employee, it follows from parliamentary history that two situations must be distinguished:
- The situation in which the employee resigns because he or she has found a new job. This situation gives rise to no or hardly any risks for the employer.
- The situation in which the employee terminates his employment contract in the heat of the moment, therefore without considering the consequences. Unlike in the case of termination by mutual consent, no statutory cooling off period then applies in which the employee may retract his resignation. An employer may not simply assume that the employee intended to resign and must therefore verify that his stated intent did indeed relate to the termination of his employment contract. The purpose of that strict standard is to protect the employee against the serious consequences of resignation, such as loss of entitlement to unemployment benefits.
The Court of Appeal found that the second situation applied in this case, because the employee had not specifically and unequivocally stated that he intended to resign. The termination had been presented to the employee as an alternative for summary dismissal. The employer had furthermore failed to draw the employee’s attention to the negative consequences of his resignation. The Court of Appeal ordered the employer to pay the employee’s salary from 4 January 2006 until 19 February 2016 (the date on which the employment contract would have ended by operation of law).
An employer should therefore not simply rely on an employee’s resignation, particularly if the employee’s intentions are unclear. The employer can overcome that problem by sending the employee a letter explaining the consequences of the resignation and requesting the employee to confirm his or her resignation. In this case the employment contract ended by operation of law, but if that is not the case the employee’s pay claim may be significant.
The ruling of the Court of Appeal (in Dutch) can be found here.
