- Can my employer terminate the employment contract with me prematurely?
In principle, no. According to Dutch employment laws, different redundancy procedures are required for different reasons of premature termination. According to article 7:669 of the Dutch Civil Code, a company must first obtain the redundancy permit from the Dutch Labour Department (also known as ‘UWV’ in Dutch), if the worsening business climate is the reason for redundancy. There are strict conditions that a company needs to meet before the UWV grants such a permit. For instance, the dismissal needs to be conducted in a ‘reversed order’, meaning that, among the employees of the same position, the person with the shortest tenure gets laid off first. Dismissal without such a permit is illegal. If you are confronted with such a situation, you need to challenge the illegal dismissal in court within 2 months.
If an employer dismisses an employee due to other reasons (such as, ‘underperformance’, ‘deteriorating relationship’ or ‘fault committed by the employee’), the company needs to start a legal procedure with the District Court (‘kantonrechter’), asking for the judge’s authorisation for the dismissal.Another way of dismissing an employee is through obtaining mutual consent from both the employer and the employee. Once the two parties reach an agreement, they can sign a special contract called ‘settlement agreement’ (‘vaststellingsovereenkomst’) in Dutch. Considering the complexity of redundancy laws, most companies opt for this last method.
2. I have a temporary employment contract. When does the Company need to inform me about the possible renewal or non-renewal?
If the length of your employment agreement is six months or longer, the Company needs to inform you at latest 1 month in advance about the issue as to whether your current employment agreement shall be extended or not. If the company decide to extend it, they also need to inform you about the conditions of the extension (such as, salary etc). Please be aware that the Company need to inform you in writing. An oral notification is not sufficient. If the company does not comply with this rule, you are entitled to a financial compensation. The maximum amount of the financial compensation is 1-month salary. If the company informs 1 week late, you are entitled to one-week salary. The company where I am working decides not to renew my contract. I have been working 9 months there.
3. Am I entitled to dismissal compensation?
Yes, on the basis of Dutch employment laws, you are entitled to a transition compensation. The amount of the transition compensation is related to the length of your tenure at the company. For each half year that you have worked, you are entitled to 1/6 of your monthly salary as a transition compensation. If you have worked 9 months at a company, you are entitled to at least a transition compensation of at least ¼ of your monthly salary.
4. If the employer terminates my employment agreement, does that have an impact on my residence title?
If you are on a highly skilled migrant permit, an EU blue card or regular employment permit, the termination of your employment agreement can have a negative impact on your residence permit status. If your residence card is still valid for a period of three months or longer, you will have three-month time to look for a new job. If you cannot find a job during the search period, the IND can revoke your residence permit, starting from the end of the three month search period. If your residence card is valid for a period shorter than 3 months, you will only get the time until the expiry date to find a new job. If your residence permit and your employment agreement end on the same day, you do not get any extra time to look for a new job.
6. Can my employer lower my salary unilaterally due to the worsening economy?
No. Your employer is obliged to pay your salary as your employment contract states. In fact, the Dutch Government have launched a number of relief measures, with the purpose of supporting companies throughout this corona crisis. One of these measures is the so-called NOW policy. This NOW policy compensates up to 90% of the salary expenditure. However, this does not mean that you are only entitled to 90% of your agreed salary. On the basis of Dutch labour laws, employees have the right to get their contractually agreed salary (as stated in contract itself), even if their workload is less than usual. This adheres to the principle of ‘good employer’ and ‘good employee’, pursuant to the employment laws in the Netherlands. A ‘good employer’ has the obligations to accept the reasonable demands from the employees. For example, as the schools are closed due to the lockdown, an employee has to work at home, while taking care of his/her children (except in certain cases where the presence of the employees at the workplace is absolutely necessary). On the other hand, as a ‘good employee’, he/she shall accept certain reasonable modifications of his/her job contents on a temporary basis, as long as they are reasonable and inevitable under the current circumstances. For example, the employer postpones the payment of the annual bonus from July until December. In order to assure a non-stop 24/7 operation of a production line, the employer may ask the employees to change from morning shift to evening shift. Some employment contracts include ‘unilateral modification’ clause. Should the employer want to use the modification clause, he/she needs to bear in mind the principle of ‘reasonableness and fairness’.
7. Are there any legal consequences if my employer cuts my salary or withholds it?
Employers have no right to cut or withhold the salary without your consent. According to Dutch labour law, if the employer withholds the salary payment, the employee may ask the court to impose an additional penalty (up to 50% of the amount owed). If your employer is withholding your salary, you can start an interim measure procedure with the District Court. Under such situations, the court will handle your case on an expediated basis.
Nevertheless, for highly skilled migrants, if your company withholds the payment of your salary, there can be serious consequences. On the basis of the Dutch Foreigner Employment Act, the recognized sponsor must pay out a highly skilled migrant’s salary each month in time, through bank transfer, to the highly migrant’s own bank account. If a company does not pay the salary in time or if the salary drops below the required thresholds, that is a breach of article 2 of the Foreigner Employment Act. This means ‘illegal employment’. Should the IND find out that your salary was not paid in time or that your salary drops below the threshold, the IND can revoke your residence permit retroactively as from the month in which the salary was not paid or was not paid in time. In principle, the IND have twelve year time to find out the discrepancies. Also, the employer can receive a fine up to €8.000.
8. How much is a sick employee entitled to his pay?
In accordance with the Dutch labour laws, the employee is entitled to, at least, 70% of his standard salary during his sickness. The salary payment during the sickness may not be lower than the minimum salary. In many sectors, there is a collective labour agreement, which stipulates that the employee is entitled to 100% of his standard salary during the first year of his sickness, that the employee is entitled to 70% of his standard salary during the second year of his sickness. Under certain circumstances employers have the right to dismiss a sick employee when:
- The employee has been sick for over 104 weeks; and,
- The employee cannot recover in the coming 26 weeks; and,
- The employer has got the permission from the UWV.
During the sick leave, employees have the obligation to be treated properly and be reviewed by the company’s medical practitioner to analyse the employee’s remaining capability to perform adjusted work. Together with company doctor, the company should improve the environment of the work place and to make necessary changes to the scope of your work, with the purpose of facilitating your return. Companies can withhold the salary if the employee refuses to cooperate and/or to carry out adjusted work.
9. Am I entitled to my salary if I have to take care of my sick family member?
According to the Work and Care Act, employees are entitled to their salaries if they are absent at work because they have to take care of their sick family members, which is known as the care leave (‘zorgverlof’). However, the length of the care leave cannot be more than twice that of his/her weekly work time. For example, if you work four days a week, then you are entitled to have a maximum of eight days of paid care leave per year. Any care-leave exceeding the statutory protection may result in no-pay leave, and the maximum length of the no-pay care leave is six times that of your weekly work time.
10. I was planning to have my vacation but I would like to cancel it due to the corona lockdown. Is it possible?
Unless the company does you a favour or it is stated in their internal policy, the employer has no obligation to approve your request of cancellation.
11. I left the Netherlands to somewhere safer during the corona virus crisis. Am I entitled to my pay?
A unilateral contract modification by the employee with regard to areas such as workplace and worktime is not allowed. The employee may not be entitled to his/her salary in this case. Meanwhile, you have to be aware that, as a residence permit holder, you are supposed to have your main residency in the Netherlands. Depending on the nature of your residence permit, should you stay too long outside the Netherlands, the IND can revoke your residence permit.
12. Can the company check my body temperature?
No. This is personal privacy and shall not be deprived of by employers for any reason. If an employer is concerned, he/she should grant the employee sick leave. Only the corporate’s medical practitioner can examine the employees, whilst the patient’s substantive health information must be kept confidential.
13. Am I entitled to my salary if I have zero hour (oproep) contract and have no work due to the corona lockdown?
Yes, only if you have been working for more than three months. Your salary amount will be determined by the average amount you have worked over the last three months. For example, if you worked 90 hours in March, 110 in April and 105 in May, then you are entitled to get the salary of 102 hours per month starting from June.
14. My company has stopped paying my salary. Today is 5 July. I have not received last month’s salary. What shall I do?
The company is obliged to pay out your salary no later than the last day of the month. In this case, you need to write an e-mail/letter to the company, asking them to pay out your salary. If they do not pay, you should look for a lawyer and start a legal procedure. It is called an interim procedure (‘kortgeding’ in Dutch). Normally, the court will arrange a hearing in six week time upon receipt of your draft subpoena. If you are staying in the Netherlands on a highly skilled migrant permit, this payment default can have a serious impact on your residence rights. See question 7.
15. I am here on a search year permit. Am I entitled to unemployment benefits?
In order to qualify for unemployment benefits, you need to meet the following primary requirements. First, you have worked at least 26 weeks over the past 36 weeks. Second, the unemployment must not be caused by the employee himself/herself (e.g. his/her own resignation or dismissal due to serious fault committed by the employee). Third, the employee must belong to available labour force when he/she is asking for the unemployment benefit. Therefore, for example, a fulltime student is not considered as an available worker.
16. What is a settlement agreement?
This is a contract of mutual consent by both the employer and employee, to agree upon the termination conditions of the employment contract, such as the reason for termination, termination date, dismissal compensation, survival of contractual non-competition clauses etc. After signing this contract, employees have an unconditional cooling off period of 14 days, or 21 days if this cooling off period is not specified in the contract itself. During this cooling off period, the employee has the rights to change his/her minds and to withdraw his/her consent. A properly drafted settlement agreement can be used by the employee to ask for unemployment benefits. Also, you can negotiate about the termination date. If you are here on a highly skilled migrant permit or an EU blue card, the more time that you can get from the company the better. Therefore, if you have received a settlement agreement from your employer, please contact Mynta Law.
17. How long will my unemployment benefits last? And how much?
If you meet the requirements, you are entitled to at least three months of unemployment benefits. The amount of the first two months will be 75% of your previous gross income respectively; whilst it will be 70% starting from the third month and so on. Basing on how long you have worked before, the maximum length is 24 months.
18. Are blue card holders and highly-skilled migrants entitled to unemployment benefits?
Yes, for a maximum period of three months. Please be aware that the IND can revoke your residence permit if you remain unemployed for more than three months.
19. I quitted my job voluntarily. Can I recall my resignation?
The employer is obliged to confirm the intention of the employee. Under special circumstances the employee may be able to recall his/her resignation.
20. Can I get unemployment benefits if I quit my job voluntarily?
21. Can I get unemployment benefits if my fixed term contract expires and my employer declines to renew the contract?
Possible. It depends on whether you meet the criteria of the unemployment benefits. For example, have you worked 26 weeks over the last 36 weeks?
22. Are there any obligations while I am receiving unemployment benefits?
You are obliged to look for jobs proactively during the unemployment period and to report your job hunting activities to the UWV regularly. You are also obliged to accept the advice given by the UWV.
23. As a highly-skilled migrant or blue card holder, can I stay in the Netherlands if I am unemployed for more than three months?
According to the Dutch immigration laws, blue card holders and highly skilled migrants are given, at most, three months to look for another job when they become unemployed. The Dutch Immigration Department (IND) can revoke your residence permit if you are unemployed for more than three months. However, you can file a dissenting opinion once you receive an intention of revocation from the IND. If the IND revokes your permit, you are allowed to file an objection. Before the IND declare your objection unfounded, your residence card remains valid.
24. What will happen if I lose my job in the course of the application for permanent residence?
You are obliged to inform the IND about your latest circumstances. It may affect the outcome of your application. Therefore, please contact Mynta Law for professional advice in advance.
25. My company goes bankrupt. Will I get paid?
According to section 40 of the Dutch Insolvency Act, the appointed liquidator has the right to dissolve the employment relationship between the bankrupt corporate and its employees. The notification period is six-week at most, and the salaries will be paid by the UWV. Employees are entitled to unemployment benefits after the notification period.
If you have more questions, please contact Mynta Law.
Telephone : 070 205 1162
E-mail : firstname.lastname@example.org
Website : www.mynta.nl