Supreme Court, 24 February 2012, LJN: BU8512
The Facts
On 10 May 2005, an employer and an employee, who has American citizenship, concluded an employment agreement. Under this employment agreement the employee took up employment in Amsterdam as the agreed location of employment. Dutch law was declared to be the governing law in the employment agreement. On 28 July 2006 the employer gave (premature) notice of termination of the employment agreement as of 1 October 2006. The employer neither asked nor was granted permission of the UWV for this termination, as envisaged in Article 6 of the BBA. In accordance with Article 9 of the BBA, the employee set aside the notice of termination because of the absence of this permission. Later on, the employment agreement was conditionally rescinded at the employer's request. The key question in this matter is whether the employer required permission to give notice of termination of the employment agreement pursuant to the BBA. The employer took the position that he did not require such permission, because the dismissal did not affect any Dutch interests and the employee would not fall back on the Dutch labor market (as he would be returning to the United States). The employee disputed this position.
Court of Appeal of Amsterdam
On 27 April 2010 the Court of Appeal gave a judgment in this matter. The Court of Appeal referred to an earlier judgment of the Supreme Court from 1987, in which the BBA was found to serve to protect socio-economic relations in the Netherlands. The requirement of consent is intended to prevent socially unjustified dismissals in the interest of both the employees concerned and the Dutch labor market. In the opinion of the Court of Appeal, the "protection of the Dutch labor market" must nowadays seriously be put into perspective, given the importance of the European Union and the free movement of employees within its territory. Today it would be more obvious for the BBA to offer employees protection against unfair dismissal, and this objective would deserve emphasis. Therefore it cannot be understood why such protection would have to be denied to the employee. The employee (a) was working under an employment agreement governed by Dutch law, (b) was performing the work in the Netherlands, without a concrete prospect of being posted abroad, and (c) the employer has its registered office in the Netherlands. Thus, this employee is no different from other employees working in the Netherlands who can indeed rely on the BBA. The Court of Appeal therefore found for the employee.
The Supreme Court
The Supreme Court largely followed the opinion of the Court of Appeal. Article 6 of the BBA (dating from 1945) has been amended as a result of the entry into force of the Flexibility and Security Act (on 1 January 1999). This amendment cancelled the obligation of the employee to have a permit in order to give notice. However, it was considered necessary at the time to maintain the preventive dismissal test by an administrative body for employers. This has given even more prominence to the protection of employees against socially unjustified dismissal. Firstly as a generally independent test for unreasonable dismissal, and secondly as a tool for the government to protect weak groups on the labor market – such as (partly) disabled and elderly persons – against socially unjustified dismissal. At the same time, the dismissal test is an important tool for the government to prevent an improper inflow of people into social security schemes. This brought the Supreme Court to the opinion that the interest of the Dutch labor market in preventing socially unjustified dismissals at present converges to a great extent with the interest of employees in preventing such dismissals. The Supreme Court endorsed the opinion of the Court of Appeal that the objective of the BBA of offering employees a form of protection against (socially) unjustified dismissal to which they have a right, is worthy of emphasizing. In these circumstances (see above under (a) through (c)), the Court of Appeal rightly ruled that in this case Article 6 of the BBA applies, even though the employee will not fall back on the Dutch labor market after his dismissal.
Tips
- Please note that in international private law, Article 6 of the BBA is regarded as a "priority rule". This means that Article 6 of the BBA may apply to employment agreements to which Dutch law does not apply. But then again, Article 6 of the BBA does not by definition apply to international employment agreements.
- The applicability of Article 6 of the BBA is adjudicated on the basis of the circumstances of the case, especially the extent to which the employee and his work are connected to the Netherlands. Previously, it was considered an important criterion whether the employee would fall back on the Dutch labor market after his dismissal. After the judgment discussed above, this criterion is no longer of decisive importance. The applicable standard is whether the situation of the employee is sufficiently distinct from that of other employees working in the Netherlands.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.