Reassignment doesn’t necessitate job creation

Apart from summary dismissal situations, an employment contract can only be terminated on the employer’s initiative (i) if the employer has reasonable grounds for doing so, and (ii) if reassigning the employee within a reasonable timeframe is impossible or impractical. In other words, this is a dual requirement. It is in that regard up to the employer to offer the employee extra training if that would make him or her suitable for an open vacancy.

Reassignment investigation

The corona crisis appears to have significantly heightened the importance of reassignment investigations. In particular, the UWV seems to have adopted a more critical stance as regards the efforts made by employers on this. The dismissal procedure via the UWV is the mandatory  route for dismissal where a dismissal is for economic reasons or long-term (> 2 years) incapacity for work. The economic  basis was the subject of a court case  between NedTrain and one of its mechanics.

What was this about?

NedTrain wanted to undertake a reorganisation because of the planned arrival of new equipment with new and more advanced technology. Employees were required to have a higher level of education to work with this new equipment. The mechanic in question was educated to MBO-1 level, while NedTrain would only have jobs at levels MBO-2 and above after the reorganisation.

NedTrain then offered the appropriate training courses. The mechanic started the courses but dropped out of them early on. He was given a cognitive capacity test, but this also showed that he did not meet the requisite MBO-2 level. NedTrain also supported the mechanic over an eighteen-month period in trying to find other work, including an outplacement in the final six months.

When it transpired that the mechanic could not find any suitable work, NedTrain made him an offer – in line with the redundancy scheme that had been agreed with the unions – for termination of his employment contract by way of a settlement agreement. Under this, the mechanic would receive twice the transitional payment. He did not agree to that.

The UWV refused permission for dismissal

NedTrain then asked the UWV for permission to cancel the employment contract with the mechanic. The UWV refused permission for dismissal, despite all the efforts made by NedTrain to reassign the mechanic. The UWV considered that the reasonable basis existed, but also that there was in fact enough work available at NedTrain at MBO-1 level and it was therefore possible to create a job at that level. According to the UWV, the mechanic could then be given a yet to be created position.

Sub-district court: no duty to create a position

NedTrain was unable to agree with the UWV’s opinion and submitted the matter to the sub-district court, seeking dissolution of the employment contract with the mechanic. The sub-district court likewise disagreed with the UWV’s thinking. Referring to the “Siep” judgment by the Dutch Supreme Court, the judge held that the duty to reassign was not intended to create a duty on the employer to achieve the result of reassignment. The judge did not consider that the circumstances of this case made the situation any different. The starting point was that, as an employer, NedTrain was at liberty to opt for a particular way of running its business and configuration of its operations, even if that led to a reorganisation of its business with the loss of jobs. It could not be required to create a job at MBO-1 level in order to thus retain a particular worker.

The sub-district court judge also held that NedTrain had satisfied its duty to reassign by offering various training courses and an outplacement. It was not disputed that there was a reasonable ground. For these reasons, the sub-district court dissolved the mechanic’s employment contract and awarded the transitional payment.

Jasper Hoffstedde (jh@clintlegal.com / +31 20 820 0330)