Fair hearing
It is very important for an employer, before deciding to impose a disciplinary measure, to give the employee the opportunity to tell his or her side of the story, to find out exactly what happened, and to decide which disciplinary measure is appropriate for the situation. The principle of fair hearing is therefore an important element in the imposition of disciplinary measures. But what exactly is it? In short, the principle of fair hearing means that the story of both parties must be heard, that both parties have the opportunity to defend themselves, and that this information complements the information already collected. In this context, it is important that the information obtained by the employer with regard to the misconduct of the employee, but also as evidence of compliance with the principle of the right to a fair hearing, is recorded in writing.
What measure?
The severity of the sanction and therefore the disciplinary measure used must be proportional to the seriousness of the employee's behaviour. Several factors play a role in determining the appropriate measure, namely: have previous warnings been given, is it the first time the employee commits an offence, how serious is the employee's behaviour, how long has the employee been employed, is there evidence of the employee's behaviour, what are the legal rules to be observed, is there a protocol to be followed, does the employee know of the existence of the rules he or she is breaking, are all colleagues who commit such an offence treated in the same way, etc.? The various disciplinary measures are discussed in more detail below.
Official warning
An official warning is given when a ''simple'' verbal warning is not enough, but it is still too early, if the incident is not serious enough, to impose a heavier punishment. An official warning will be issued, after which it must be signed by both the employer and the employee. There are not often consequences attached to an initial official warning other than its inclusion in the personnel file of the employee. However, at the moment the same employee misbehaves again, this already given official warning will reappear and it is possible that, given the fact that the employee appears to be misbehaving more than once, a heavier disciplinary measure is imposed on the employee.
Suspension or removal of active duty
Suspension, also known as removal of active duty, is a more severe disciplinary measure than the official warning discussed above. In 2003, the Supreme Court rejected the judgment called Van der Gulik/Vissers (Van der Gulik/Vissers), which stipulates that the employee must continue to be paid his or her salary despite the fact that no work is carried out. According to the Supreme Court, the risk of suspension therefore lies with the employer: no work is carried out, but the employee is paid. Although the Supreme Court is therefore of the opinion that wages must continue to be paid in the event of suspension, the government takes a different view. They state that if a choice is made to impose a disciplinary measure in the form of suspension, the employer may withhold the salary. Nevertheless, judges often follow the opinion of the Supreme Court. Suspension without continued payment of wages is a heavier disciplinary measure and is less common. An employer should think carefully before stopping payment of wages in the event of suspension of an employee.
Termination or withholding of wages
Termination or withholding of wages is a disciplinary measure that is not often used, as the payment of wages is an important element of the employment contract between employer and employee. In a number of cases, the payment of wages may be terminated or wages may be withheld. Think of a situation in which an employee does not do his or her job without having a good reason for doing so. When an employee does not report sick in the right way, or when an employee reports sick, without being ill.
Invoking contractual penalty clause
Invoking a contractual penalty clause means that a certain clause laid down in the employment contract, or the related agreements, is violated. Such a clause, for example a non-competition or confidentiality clause, often includes a fine.
Transfer or change of function
Transferring an employee or changing his or her position is a disciplinary measure that is not used very often, on the one hand because not many companies have multiple branches, and on the other hand the problem is then often shifted and may reappear in the same way a little later. The imposition of such a disciplinary measure is not always possible either, because of the interpretation of the terms of employment. If the employee's position and workplace are covered by the terms of employment, it is not possible to simply deviate from them. The fact is that the terms of employment will have to be changed, which cannot be done just like that.
Demotion or degradation
Demotion, probably better known as degradation, means that the employee who shows misconduct is moved to a lower function or position than the function in which he was employed before the disciplinary measure was imposed. As mentioned above, the position can be seen as an essential subject of the terms of employment, which means that it cannot be changed so easily.
Dismissal
An important function of imposing a disciplinary measure is to improve the employee's behaviour. Since dismissal does not provide an opportunity to do so, dismissal is not a commonly used disciplinary measure. If dismissal is used as a disciplinary measure, a subdistrict court will assess whether there is sufficient legal ground for dismissal. To return to the importance of the aforementioned official warning, an important part of the subdistrict court's assessment consists of observing any official warnings or other documents concerning the employee's conduct that can be found in the personnel file.
Immediate dismissal
Another step beyond dismissal is immediate dismissal. In the case of immediate dismissal, the employee is dismissed from the moment the notice is given. There is no notice period and the employee is not entitled to any severance pay. Immediate dismissal requires an urgent reason for dismissal according to the law. The reason for dismissal must be immediately shared with the employee and the dismissal must be given without delay.
Contact
When imposing disciplinary measures, both the employee and the employer have a number of important points to consider. For example, it is not always the case that an official warning is actually well-founded when it is brought to the attention of the subdistrict court in a process of dismissal. It is also very important for an employee to be aware of the consequences of being subject to disciplinary measures. For example, an employee is not entitled to unemployment benefit (WW) upon dismissal.
Has your employer imposed a disciplinary measure on you with which you disagree? Or are you as an employer in doubt about imposing a disciplinary measure on your employee, but you do not know which measure suits the situation best? If so, be sure to contact a legal advisor. We at Legal Q will be happy to help you!