Termination of the employment contract by an employee must be clear and unambiguous. Without a clear and unambiguous statement aimed at termination of the employment contract, the employer cannot hold the employee to the termination of the employment contract. In that case, the employee is still entitled to salary. However, does an employer has to investigate whether the termination is actually wanted by the employee? And if so, how far does this duty of investigation go?
Duty to investigate
An employer does not automatically has to investigate every termination, but under circumstances this can be expected of the employer. The following circumstances come to mind:
- the employee has given notice under the influence of strong emotions
- a termination comes very unexpectedly
- the employee withdraws his notice very soon after notice was made
- the employee is (possibly) incapacitated for work
- the employee feels pressurized, for example in the event of a summary dismissal situation, where the employee is given the choice between a summary dismissal or making the decision to leave by giving notice himself
- the notice itself is not clear. For example: “I will stop working here“. Is that a notice of termination, or rather a disguised declaration of illness or wish to be transferred? Or should this be seen as a refusal to work?
- the employee seems to be insufficiently aware of the consequences: can the employee foresee that the termination could jeopardize possible unemployement benefits or that he will be liable for damages in case of taking into account a notice period that is too short or a termination of a fixed-term employment contract without an interim termination clause? The level of education or a lack of understanding of the Dutch language can be a relevant factor in this respect.
When circumstances arise that cast doubt on the clarity and unambiguity of the employee’s statement, the employer is well advised to invite the employee for a meeting to discuss the reason for the termination and to point out the possibly negative consequences of the termination. We advise to make a written record of this meeting. In that event the employer can show that the duty of investigation was sufficiently fulfilled and that there were no reasons (anymore) to doubt the termination.
Example from case law
A recent example from case law showing that not every statement of an employee regarding a termination may be considered as an actual termination is the following:
An employee wanted to be transferred to another gym, because he had a conflict with the employer’s new manager. The employer refused, but the manager of the other gym said that there was still room for a transfer. On 16 June 2020, the employee sent an email to the employer with the subject: “Termination of cooperation” and the text: “Hereby I would like to announce that as of 1 September I will no longer work for (…) [employer].” The employer informed the employee that he could not unilaterally decide to transfer, but that there might be possibilities in the long run. By email dated 30 July 2020, the employee sent another email: “I am working until 28 August Sunday. (…)”.
When the employer informed the employee that he could indeed be transferred, the employee suddenly disagreed with what he considered to be a forced transfer. However, the employee changed his mind and wanted to be transferred anyway, but then refused to sign the new employment contract.
The employer – probably fed up with the employee’s capriciousness – then confirmed the employee’s ‘notice’ of 16 July 2020. The judge did not agree: it would have been up to the employer to ask the employee what exactly his intention was and whether he actually wanted to terminate his employment contract. According to the judge, in the given circumstances – including the discussion about the transfer – the emails from the employee could not be read as an unambiguous termination of the employment contract. See District Court of Amsterdam December, 24, 2020, ECLI:NL:RBAMS:2020:6658.