Does the new WNRA Act apply to you?
If you are a public-sector employee (i.e. a civil servant or ambtenaar in Dutch) and you retained your legal status on 1 January 2020 because you fall in one of the categories of employees who are exempt from a new act known as the Public Servants (Standardisation of Legal Status) Act (or WNRA), this page contains information you need to read if you have been given notice of dismissal or if your employer is planning to give you notice of dismissal.
If you are covered by the terms of the WNRA, and your unilateral letter of appointment was automatically replaced on 1 January 2020 by a bilateral employment contract, you are now subject to the rules on civil-law employment contracts, including the law on dismissal. This means that the information on this page does not apply to you. Click here for more information about the situation applying in your case.
Note that any decisions taken before 1 January 2020 remain subject to the law as it applied prior to the entry into force of the WNRA. In other words, they continue to be subject to the administrative-law procedures under the General Administrative Law Act. This means that these situations are covered by the law on dismissal as it applies to civil servants employed under a letter of appointment.
Dismissal (for public-sector employees employed under a letter of appointment)
All sorts of questions are bound to arise if you hear that your employer is planning to terminate your employment. These include:
- Can I be dismissed just like that?
- Am I entitled to severance pay?
- Am I entitled to unemployment benefit?
- What should I do?
- What should I not do?
These and other questions are answered below.
Which regulations apply to you?
The law on public-sector employees does not contain one uniform set of regulations for dismissal and redundancy. There are many different rules and regulations on the legal status of public-sector employees all of which contain differing provisions on dismissal and redundancy. In other words, your legal status depends first and foremost on who your employer is.
Grounds for dismissal
An employer wishing to terminate your employment needs to have good grounds on which to do so. Despite the existence of many different regulations on the legal status of public-sector employees (and except in a situation in which you decide to terminate the contract yourself, i.e. to resign), your employer is in all cases required to cite one of the following as the ground for your dismissal:
- incapacity for work;
- incompetence or unsuitability;
- a reorganisation;
- punitive dismissal;
- an impaired working relationship or ‘other grounds’.
Incapacity for work
Your employer may, subject to certain conditions, decide to terminate your contract if you have not been able to work for a long period of time. A prolonged incapacity for work is defined as a period of over two years during which you have been completely unfit for work, or a period of over three years during which you have been partially unfit for work.
Incompetence or unsuitability
The term ‘incompetence or unsuitability’, which is also referred to in the law as ‘incompetence or unsuitability for reasons other than illness’, implies that an employee is underperforming at work. Another term used in this context is ‘dismissal on the grounds of functional incompetence’. Obviously, this ground for dismissal requires the existence of a staff record containing information in support of dismissal. Another important requirement is that the employee must have been given an opportunity to improve his or her performance.
Reorganisations are often based on reorganisation plans designed to find alternative sources of employment within the organisation for any staff who are made redundant. A reorganisation often involves all sorts of decisions that affect your legal status, without directly leading to dismissal. When in doubt, you should lodge a formal ‘notice of objection’ to such a decision in good time.
Punitive dismissal is the most severe disciplinary action a government employer can take. The punitive dismissal of a public-sector employee is similar to the summary (i.e. ‘on-the-spot’) dismissal of a private-sector employee employed under a contract of employment. Punitive dismissal may be imposed as a sanction in situations such as theft, violence or threats of violence, and serious forms of negligence.
An impaired working relationship or ‘other grounds’
This is a residual category and covers situations in which the parties cannot or do not wish to continue with the employment situation, even though there is no other valid ground for dismissal.
This ground is normally included in the various regulations covering public-sector employees so as to create a ground for dismissal in situations where there is a breach of trust preventing the employee from remaining in the employer’s service. Dismissal on these grounds presupposes the existence of a comprehensive staff record.
'Other grounds’ are often cited as the ground for dismissal when the parties wish to arrive at a mutual agreement on the termination of employment.
Notice of dismissal
The termination of employment with a government employer requires the issue of a notice of dismissal. This is a written decision by the employer stating that your employment will be terminated, as well as the date on which this will take effect and the grounds for termination.
If your employer is planning to terminate your employment, he or she must give you an opportunity to express your standpoint in advance. You can then explain why you do not agree with the planned dismissal before notice of dismissal is actually given. You can state your standpoint in a letter to your employer. Although you do not need a lawyer to do so, you are advised to seek legal advice about the formulation of your standpoint, as it may well play an important role in the rest of the proceedings.
Before submitting your standpoint, you should collect as much information as possible on the grounds for your intended dismissal, including your staff record.
Once notice of dismissal has been given, you are entitled to lodge a notice of objection. Objections must generally be lodged with the employer within a six-week time limit. The notice of dismissal should refer to the six-week time limit for lodging objections, and should specify the body with which objections should be lodged. If you fail to lodge your objection within the time limit, the dismissal decision automatically becomes irrevocable and there will be nothing more you can do about it.
Notice of objection
The law states that a notice of objection must contain:
- the date;
- your name and address;
- a description of the contested decision (don’t forget to enclose a copy of the notice of dismissal with your objection);
- the reasons for your objection, i.e. your explanation of why you disagree with your dismissal.
You should then sign the notice of objection. Although the notice of objection need not be lodged by a lawyer, you are advised to seek legal advice as the law is very complex and there are all sorts of different regulations affecting the legal status of public-sector employees.
Pro forma notice of objection
If the time limit for lodging an objection has almost expired and you no longer have enough time to seek expert advice or fully explain why you disagree with your proposed dismissal, you should submit what is known as a ‘pro forma notice of objection’ within the time limit. A pro forma notice of objection must meet the same requirements as a notice of objection, the only difference being that it need not contain the reasons for the objection. In your pro forma notice of objection, you ask to be given a new time limit for explaining your reasons for objecting to your dismissal. In principle, you will then be given an opportunity to do so.
Send your notice of objection by registered mail
Whether you are sending a full or a pro forma notice of objection, you should always use registered mail as this will enable you to prove that you lodged it in good time.
Once your notice of objection has been lodged, a hearing will follow after which a decision will be taken on your objection.
Appeal to the court
If the notice of dismissal is upheld despite your objection, you can still appeal to an administrative court (bestuursrechter). But how should you proceed?
Notice of appeal
You appeal to the administrative court by lodging a notice of appeal. Like the notice of objection, the notice of appeal must state:
- the date;
- your name and address;
- a description of the contested decision;
- the grounds for the appeal.
You must sign the notice of appeal and state how you wish the court to rule.
Don’t forget, though, that you are appealing against the decision taken on your objection. In other words, your notice of appeal should be aimed at the latter decision and not at the original notice of dismissal. A notice of appeal must be lodged within six weeks of the date on which a decision was taken on the objection. If you fail to appeal in time, the decision on the objection automatically becomes irrevocable.
Although you do not formally need a lawyer to lodge a notice of appeal with the administrative court, you are advised to ask a lawyer to help you.
Pro forma notice of appeal
If necessary, you can comply with the six-week time limit for appeal by lodging a pro forma notice of appeal within six weeks. A pro forma notice of appeal must meet the same requirements as a notice of appeal, the only difference being that it need not contain the reasons for the appeal. In your pro forma notice of appeal, you ask the court to set a new time limit for setting out your grounds for appeal.
Send your notice of appeal by registered mail
Whether you are sending a full or a pro forma notice of appeal, you should always use registered mail as this will enable you to prove that you lodged it in good time.
After receiving your notice of appeal, the court will invite your employer to put forward a written defence. This is followed by a hearing. The court ultimately decides whether to uphold or reject the appeal. If the appeal is granted, the court will set aside the decision taken on your original objection. There are now two options:
- A fresh decision is taken on the objection you previously lodged.
- The court immediately takes a fresh decision itself.
Appeal to a higher court
If the administrative court does not rule in your favour, you may appeal to the Central Appeals Tribunal (Centrale Raad van Beroep).
Proceedings as described above often take a long time, in some cases even years. So it may be worth asking the court for provisional relief, i.e. for a ruling the time being. This you can do as soon as you have lodged a notice of objection against the notice of dismissal. Although provisional relief is by definition temporary, the same court may also take a final decision.
Under standard employment law, an employer (including a government employer) may request the court to terminate a contract of employment with one of its employees and the court may then decide to award a severance payment to the employee in question, i.e. either a ‘transition payment’ (transitievergoeding) or a reasonable, additional payment. This system does not apply, however, to public-sector employees employed under a letter of appointment.
Instead, most regulations state that a public-sector employee whose employment is terminated may be entitled to a supplementary benefit, for example a supplementary unemployment benefit (WW). These are payments over and above the statutory minimum benefits and may take the form either of a higher unemployment benefit or of the payment of an additional benefit following the termination of unemployment benefit.
In certain cases, though, public-sector employees employed under a letter of appointment may be entitled to a separate severance payment. However, this is normally awarded only if the ground for dismissal is an impaired working relationship or if the employee is dismissed on ‘other grounds’.
You and your employer may reach a mutual agreement about the termination of your employment. If you agree to a proposal to terminate your employment, this need not affect your entitlement to unemployment benefit (WW) and any supplementary benefits, provided that the agreement satisfies a number of conditions. For this reason, and also to prevent any future disputes, such agreements are generally set out in the form of what is known as a ‘personal settlement agreement’ (persoonlijke regeling).
A personal settlement agreement states, for example, that the employer is planning to give the employee notice of dismissal. It lists the reasons and also states the date on which the employment is to be terminated. You will need to find out whether you qualify for unemployment benefit or a supplementary benefit, and also whether you qualify for any additional payment. If you do not automatically qualify under the relevant regulations for public-sector employees, you may wish to make a special arrangement to this end.
Once you receive a draft personal settlement agreement from your employer, you are advised to have it reviewed by a legal expert. Our lawyers will be pleased to do this for you, for an affordable fee.
What should you and shouldn’t you do?
Hearing that your employer is planning to terminate your employment is often an emotional moment that may well come out of the blue. Not surprisingly, many people find it hard to absorb all the information they receive in this first stage of the process. So always ask for written confirmation.
On no account should you immediately accept your dismissal. Instead, you should ask for a reasonable period of time in which to think about the situation and take legal advice.
If notice of the termination of your employment arrives in writing, be sure to lodge a notice of objection in good time. Generally speaking, you are also generally entitled to object to a ‘poor’ rating awarded in an annual performance appraisal. If you fail to do so, bear in mind that it becomes final once the time limit for lodging an objection has expired.
The fact that you have been given notice of dismissal does not in itself mean that your employment has already been terminated. In other words, you should continue to work even after you have been given notice, unless your employer exempts you from this obligation or suspends you on full pay. If there is any uncertainty about this, be sure to write to your employer, stating that you are willing to return to work as soon as they ask you to do so.