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Employment law employer

As an employer you are confronted daily with employment law issues. Ranging from employment contracts, employment disputes, incompetent or sick workers and even work-force reductions due to changing market conditions
Some of these issues are easy to solve, others are more complex in nature. We can assist you with any employment law questions you may have. We will advise you in a practical way and take legal action if necessary. We are able to alleviate your worries.

Contracts

Prevention is better than cure. A well-drafted agreement prevents many problems afterwards. You may wish to address of the importance of competition, confidentiality and relationship clauses in employment contracts with your employees. Mellema Solicitors supports you in making and /or screening all kinds of employment agreements such as employment contracts, regulations for your staff, freelance contracts, management contracts and secondment contracts.

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Dismissal for reasons of incompetence

Any employer dreads an incompetent employee. It is beneficial for both parties to part early and amicably. A dismissal due to incompetence however is a sensitive issue.

It is important to explain to your employee that his/her functioning is unsatisfactory and the employer should provide ample time to improve this. Identify matters that need improvement and indicate warnings in case things go wrong. You are expected to support your employee and/or offer coaching to improve his/her way of working. It would be wise to ask for a legal advice at this early stage. Mellema Solicitors can advise you on the contents of a personal file and whether the current file is sufficient for a dismissal due to incompetence. This way your chances of success in taking legal actions or in negotiating the termination of the employment contract will increase significantly.

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Summary dismissal

A summary dismissal is a drastic way of dismissing an employee. When given a summary dismissal your employee is not only immediately deprived of pay, but also loses the right to unemployment benefit. The requirements needed for a summary dismissal are drastic. Before issuing this kind of dismissal, please contact us to list the risks and to ensure this kind of dismissal will be successful.

There are three requirements for a summary dismissal.

1. There must be a substantial reason for dismissal. Generally speaking serious offenses such as theft must be the cause of dismissal.

2. The reason for a summary dismissal needs to be communicated (in writing). It is deemed advisable to have an employment law specialist prepare or screen the notice.

3. The dismissal has to be given immediately: once you know the urgent cause you need to give the summary dismissal. It is therefore wise to contact us immediately as soon as you know the reason for dismissal due to urgent cause.

Usually the employee will reverse the dismissal and claim wages. The wage procedure may take one year. Only after a one year period, you know whether the summary dismissal is approved successfully. It is therefore important that as soon as possible after the reversal of the dismissal, a conditional dissolution procedure is started in order to terminate the contract if after the one year period it is evident that the summary dismissal is not legally valid.

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Reorganization; dismissal for economic reasons

A dismissal for reasons of business economics may be considered if your company needs to reorganize because of a reduction in orders, disappointing results, business or organizational reasons, termination of (part of) the business.

A dismissal for economic reasons needs to comply with certain conditions.

1. A dismissal for economic reasons needs to comply with certain conditions. It is important you can prove that the dismissal is for economical business reasons. Financial information, such as profit and loss accounts and forecasts are 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. You must prove that there are no suitable jobs within the company for the employees eligible for dismissal.

If you are contemplating to reorganize your company, it may be wise to agree upon a social plan with the unions or the works council. The social plan is to outline how the reorganization will be implemented and what arrangements for the employees concerned will be made. To make the reorganization as successful as possible we advise you to ask for an employment law advice as soon as possible.

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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. The terms under which the contract is terminated are negotiated by employer and employee, the agreements are formalized and the outcome of the negotiations are marked down in a written termination agreement. When making a proposal to end the contract, it is obviously important that you do not pay your employee more than is strictly necessary. Through our experience and knowledge of employment law we know how 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 emphasize the importance of making appointments on the date of termination, paid holidays, legal and outplacement costs, etc. It is to deemed wise to draw up a contract to end an employment contract and do the negotiations by an employment law specialist.

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The competition and relationship clauses

Competition and relationship clause
By using the competition clause you want to prevent your competitor to take advantage of the knowledge gained by your employee in your company. By using a relationship clause you want to prevent your employees to take advantage of your carefully constructed network at the end of the employment contract. Practice shows that such terms are often ignored by employers which may be harmful for your business. Mellema Solicitors can assist you in maintaining the competition and relationship clauses and collect the fine on violating these clauses.

No competition clause but still illegal
Even employees without a competition clause must also meet certain rules after their dismissal . These employees may not systematically approach your customers after termination of the employment relationship.

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Sickness and incapacity for work

If an employee is regularly absent due to illness this may have a significant influence on your business. More than once this also leads to tensions between employer and employee. Legislation is complex, extensive and above all subject to continuous change. Make sure to be informed on this complex issue to prevent problems. Next you find a number of aspects you are dealing with in case an employee is ill.

The obligation to pay wagest
If your employee falls ill you are obliged to pay at least 70% of the wages for two years. Based on the employment contract between you and your employee or applicable collective agreements this could also be 100%.

No permission for dismissal
During the period of two years wages are paid the employment contract cannot normally be ended. This does not mean however a sick employee cannot be dismissed during a period of illness. The criterion here is that the employee will not dismissed because of illness. If the reason for dismissal is not related to illness, the cantonal judge can always be asked to dissolve the contract.

Re-integration
An employer has the obligation to reintegrate an employee. If you do not properly fulfill this obligation the consequences can be severe. You may be subject to a pay penalty that the UWV can impose on your business if you have not done enough to reintegrate your sick employee. In that case you can be compelled to pay wages up to a year after the standard two year's period of paying wages. Your employee too has obligations that can be sanctioned when violated during a period of being ill. If your employee insufficiently cooperates in reintegration you may stop paying wages. In that case you have permission for dismissal.

Employment dispute
Many employees report sick because of an employment dispute. In that case there is no illness because of medical reasons. It is important the employee is seen by the appointed company doctor as soon as possible to investigate whether the disease has its cause in the employment dispute. If so the appointed company doctor is obliged to declare the employee healthy (possibly after a brief cooling off period). This way both employee and employer are forced to talk in order to solve disputes as soon as possible.

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