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Employment law employee

Dismissal due to incompetence

You cannot be dismissed for incompetence without a specific reason. Your employer not only has to prove he frequently pointed out your incompetence but he is also obliged to improve your way of working by coaching. In actual practice this is different. For years impressions concerning the way someone works can be good whereas an employer may go for a dismissal after just one negative assessment. Sometimes we have a situation in which an employee has been working in a new job for a short time without enough time to get acquainted with the job. If you are dismissed because of incompetence it is advisable to resist to your dismissal.

If your employer did not meet these obligations, your dismissal for incompetence will not persist and you will keep your job. If a cantonal judge may think parties have to split this will usually end in getting a higher compensation than usual. Mellema Solicitors can advise you in the negotiations on ending the employment contract and the compensation you will receive as well as assist you in the legal procedure.

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Summary dismissal

Solicitors often indicate a summary dismissal as a rough remedy. Quite right because as an employee you are not only immediately deprived of salary but you are also not entitled to an unemployment benefit. A summary dismissal meets stiff demands. Three in short.

1. There must be an urgent reason for dismissal: in general serious matters such as theft.

2. You must be informed about the reason for a summary dismissal at once: the reason may not be vague to you.

3. The dismissal must be given immediately: as soon as your employer knows the urgent reason he must dismiss you at once.

Looking at the consequences of a summary dismissal and the stiff demands that go with this you should be advised by an employment law specialist as soon as possible. By canceling a dismissal you will keep your job and wages. Do not sign anything and be prepared to do work.

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Dismissal for economic reasons

A dismissal for economic reasons may be the result of a re-organization within your company. Such a dismissal has to meet certain criteria.

1. Your employer has to prove a dismissal is necessary for economic reasons. Financial information such as profit and loss accounts and forecasts is needed to demonstrate that there is a need to reorganize.

2. One cannot arbitrarily decide which employee is eligible for dismissal. Employees with interchangeable jobs are brought into age groups. The employee with fewest years in service in the age group with the most employees in it, is eligible for dismissal.

3. Finally the employer has to prove that there are no suitable jobs for you within the company.

If your dismissal does not meet these criteria it is wise to resist to your dismissal. Even if there are certain business economic reasons it is to deemed wise to consult an employment law specialist to determine if the compensation offered is sufficient and whether the criteria related to age groups are applied correctly. If a social plan is included in the reorganization it is advisable to have this checked by a specialist.

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Termination by mutual consent

Most of the employment contracts are not terminated by consent of the UWV WERKbedrijf or terminated by the cantonal judge but by mutual consent. Employer and employee negotiate on the terms under which the contract is terminated, agreements are formalized and the outcome of the negotiations are put down in a written termination agreement.

We can determine if the proposition made by your employer is acceptable. Through our experience and knowledge concerning employment law we are able to estimate your chances in a legal procedure. This enables us to negotiate successfully, in order to achieve maximum results in a settlement for you . Not only compensation plays a role in ending the employment contract by mutual consent. We may remind you of the importance of making appointments on the date of termination, paid holidays, legal and outplacement costs, etc

It is advisable to have a contract to end an employment contract judged by an employment law specialist. The cost of assistance by an employment law specialist are often paid for by your employer.

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Unemployment benefit

After your dismissal you are usually entitled to an unemployment benefit. In short there are three conditions:

I.You are going to work at least 5 hours a week less.
II.You are available to do work.
III.In the 36 weeks before your dismissal you worked at least 26 weeks.

If these conditions are fulfilled you are entitled to an unemployment benefit for three months. Exceptions are in case of a summary dismissal or if you resigned yourself. In that case you are culpably unemployed and you are not entitled to an unemployment benefit. If you worked at least 4 years in the past 5 years you will receive a longer period of unemployment benefit, up to a maximum of 38 months.

The unemployment benefit is 75% of your latest salary for two months. After two months the benefit is 70% of your latest salary. There is a maximum to the salary on which the benefit is based both during the first two months and the period afterwards.

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Sickness and incapacity for work

If you are not able to work because of illness, employment law issues are the furthest from your mind. However we very often see tensions increase between employer and employee in case of illness. Make sure you are informed in time on this complex issue to prevent problems.

The obligation to pay wages
If you are ill your employer is obliged to pay wages for two years. If your employer insufficiently helps you in your reintegration this period of paying wages can be lengthened. During this period you cannot be dismissed.

Reintegration
Both you and your employer have the obligation to reintegrate. Your employer will have to do everything to make your return possible in your own or similar job. If this is not possible your employer has to look for possibilities outside the company. If you do not properly fulfill this obligation of reintegration this may mean your employer may stop paying wages after having warned you. Your employer only has to start paying wages if you are fully cooperative in your process of reintegration. If you disagree with the appointed company doctor about your illness or your capability to do work you may ask for a second opinion at the UWV. An independent specialist will have a look at your situation.

Ending your employment contract during illness
Although we often see the relationship change between employer and employee during a period of illness you have to be careful in agreeing upon a proposition to end an employment contract. In general you are not entitled to an unemployment benefit or a benefit allowed due to illness. Before signing any contract be advised by a employment law specialist. The rules related to illness and the incapacity to work are complex and continually changing. Be properly advised in order to prevent problems.

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Competition clause

The criteria for this clause
A competition clause should always be a written agreement. Even if a competition clause is legally agreed upon it cannot always be fully lived up to by your employer. It is doubtful if a competition clause is still valid if an employee has another job whereas the initial competition clause has not changed. The cantonal judge can be asked to reverse the entire or partial competition clause. You may also ask to suspend the competition clause in a summary proceedings.

Judicial review
In a legal procedure the cantonal judge will have to estimate if the competition clause is eligible for a partial or entire reversal. The judge will have to balance the interests of your employer in maintaining the competition clause and your interests in the moderation of it. Lots of arguments can be put forward. These aspects are taken into consideration:

- the training you had with your employer;
- the length of the employment contract;
- the know-how you acquired with your employer;
- to what degree sales are endangered when violating the competition clause
- the degree of getting a considerable promotion
- the way you are restricted in your future possibilities by the competition clause;

The extent to which a judge will moderate a competition clause will depend on how reasonable the clause is. A competition clause which is quite broad in place and time will sooner be restricted than a clause that accurately describes the activities to be done and which is confined in place and time.

If you wish to go to a competitor we advise you to contact us in order to estimate the risks. There might be a chance you may not start at your new employer whereas your old employment contract has ended.

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