In Dutch law and in legal precedents, strict requirements are set for the reasons for summary dismissal, as well as the manner in which the dismissal is granted. There must be not only urgent cause, but the dismissal must also be granted immediately subject to simultaneous announcement of the reasons for the dismissal. It must be immediately clear to the employee which reasons underlie the employer’s decision to dismiss him summarily. A judgment of the Amsterdamcourt of appeal of 15 December 2009 (published on 29 March 2010 National Case-Law Number: BL8496) proves once again how important it is to prudently approach a summary dismissal and the written confirmation thereof. A small error in this approach can result in the summary dismissal being reversed. If that happens, the employee will still be in the employer’s employ and have a right to wages too.

In the case that was handled at the Amsterdamcourt of appeal, an employee was summarily dismissed. He allegedly threw a cup of coffee in a colleague’s face and then struck him in the neck. In and of itself, this appears to be sufficient ground for a summary dismissal. In the confirmation letter regarding the dismissal, the employer noted the following: “(…) On Wednesday 11 March a conflict took place with one of your colleagues. During this conflict you used physical force, as witnessed by several persons. Since this is not the first time that you have demonstrated similar, aggressive behaviour, we are forced to dismiss you with immediate effect.”

The employee disagreed with this and took the matter to a judge in preliminary relief proceedings to fight his dismissal. Whereas this judge was of the opinion that the employer had granted the dismissal for good reason and in the correct manner, on appeal the court of appeal thought otherwise. The court of appeal dealt in particular with the confirmation letter. According to the employee, the letter had to be read specifically in such a way that the dismissal was granted due to a combination of a conflict (the coffee incident and the strike in the neck) and “similar, aggressive behaviour” that he had allegedly demonstrated in the past. “Similar, aggressive behaviour” did not, however, occur, which the employer eventually also had to acknowledge. Since the employer was unable to prove a part of the announced reason for dismissal, the summary dismissal had been granted erroneously according to the employee. The court of appeal subsequently considered as follows:

“(…) if only part of a body of facts communicated to the employee by the employer as “urgent cause” for dismissal, after a challenge by the employee, is established at law, it shall nonetheless be possible for the dismissal to be considered granted for an urgent reason, communicated immediately, if

a. the aforesaid part can be considered in and of itself to be an urgent cause for summary dismissal;

b. the employer has argued, and it is also plausible, that he would also have summarily dismissed the employee if he – other than what he meant as evidenced by the notice of dismissal – had had no more reasons therefor than have become established at law;

c. this last [item] must have also been clear to the employee in light of the entire content of that dismissal and the other circumstances of the case.”

Eric Boerma