An employer can dismiss an employee for culpable act or omission. This means that the employee has done or failed to do something so serious that the employer can no longer be expected to continue the employment relationship. Even so, an employer may not simply invoke this as a reason for dismissal: the court assesses strictly whether this is justified.
In this article we explain when culpable conduct is at issue, what consequences this may have, and how you can defend yourself.
The different grounds for dismissal and procedures in employment law
In cases of dismissal there are various routes and grounds that may play a role. Employment law distinguishes the following important procedures:
- Termination by operation of law: The employment contract ends automatically, for example in the case of a fixed-term contract that is not extended.
- Termination by mutual consent: Employer and employee decide together, often laid down in a settlement agreement, to terminate the employment relationship.
- Termination without permission from the UWV: Possible in case of dismissal during the probationary period, summary dismissal, retirement, the employer’s bankruptcy, or when an employee resigns.
- Termination with permission from the UWV: Permission from the UWV is required in cases of dismissal for business-economic reasons or long-term incapacity for work (sick for more than two years).
- Termination via the subdistrict court: Here, the employer requests the judge to dissolve the employment contract on other grounds, such as a disrupted working relationship or underperformance.
- Conditions subsequent and death: Sometimes the contract contains specific provisions under which the employment relationship automatically ends in certain situations – such as death.
In addition to the above routes, agreements can be made after dismissal about matters such as a social plan or an outplacement program. This gives you insight into your rights and the various possible procedures in the event of dismissal.
What is culpable conduct or omission?
Culpable conduct or omission occurs when an employee displays deliberate or seriously careless behavior. Examples include:
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Repeatedly arriving late or being absent without legitimate reason.
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Refusing reasonable instructions from the employer.
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Violating safety regulations.
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Disclosing confidential information or breaching confidentiality.
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Unprofessional or disrespectful behavior towards colleagues or customers.
👉 Not every mistake or incident is blameworthy. It must involve serious or repeated behavior.
When can dismissal follow?
A judge looks at the following when assessing:
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The seriousness of the behavior.
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Whether the employee has been warned.
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Whether an improvement plan has been offered.
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The consequences for the organization.
Only if the employer can demonstrate this can the employment contract be terminated.
Note: In practice, a distinction is made between “culpable” and “seriously culpable” conduct. If there is seriously culpable behavior (such as theft, fraud, or violence), the judge can terminate the employment contract immediately—often without the right to a transition payment. In cases of less serious culpable conduct, proceedings usually follow before the subdistrict court. In that case, wages continue to be paid until the end of the notice period and the employee does have a right to a transition payment.Often, the employee is suspended during termination proceedings until the judge issues a ruling. The chance of termination is greater nowadays, because the threshold for what counts as culpable is lower than before—but the judge still applies strict scrutiny.
What role do job function and personal circumstances play?
The judge looks not only at what exactly happened, but also at the employee’s position and personal circumstances. For example, someone with managerial duties, a role-model position, or a position of trust is often expected to be extra careful. In those cases, stricter demands are placed on conduct.Additionally, personal circumstances play an important role. These include:
- The employee’s age.
- Number of years of service.
- Level of education.
- Chance of finding other work.
- Importance of retaining income.
- Private circumstances and any personal issues.
These factors may mean that certain behavior is blameworthy, but not so serious that dismissal is immediately justified. The judge therefore always weighs all the circumstances of the case.
Why is hearing both sides important when investigating culpable conduct?
A careful investigation of (possible) culpable conduct always begins with hearing both sides. This means that the employee is given the opportunity to present his or her side of the story before conclusions are drawn. This is not only fair to the employee, but also essential for a well-founded decision.By actively listening to what the employee has to say:
- The employer may obtain important information that casts the incident in a different light.
- Misunderstandings or incorrect assumptions are often prevented.
- The employer strengthens their position if it comes to a (legal) dispute, because the file is better compiled.
In short, hearing both sides prevents hasty or one-sided judgments and helps ensure a balanced, careful assessment. That is in everyone’s interest: for employee and employer alike.
Is redeployment required in case of dismissal for culpable conduct?
No, redeployment is generally not applicable in these cases. In the event of dismissal for culpable conduct or omission, the employer does not have to offer an alternative position within the company. The law explicitly states that if the conduct is so serious that dismissal is justified, it is not considered reasonable to investigate redeployment.In other words: if trust has been seriously damaged by the employee’s conduct, the employer can terminate employment immediately, even if there would normally be reassignment opportunities within the organization.
Summary dismissal or via the court?
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In cases of very serious culpable conduct (for example, theft, fraud, aggression) can summary dismissal ensue.
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In other cases, the employer must go to the subdistrict court judge to have the employment contract dissolved.
Is the employee’s behavior so serious that, as an employer, you cannot reasonably be expected to continue the employment contract? Then you have two options: immediate dismissal or a petition for dissolution with the subdistrict court.Summary dismissal always requires an urgent reason — think of situations involving exceptionally serious misconduct. You must act immediately, clearly state the reason in the dismissal letter, and salary payments stop immediately. Keep in mind: summary dismissal is assessed strictly because of its far-reaching consequences. It is examined whether there is an urgent reason, whether you acted quickly, and whether the justification is sound.In short: only in very serious cases is immediate dismissal possible. In all other cases, the subdistrict court offers a solution.
Should an employee be suspended when suspected of serious misconduct?
When there is a suspicion of serious misconduct—for example theft, fraud, or aggression—it is generally wise to suspend the employee during the ongoing investigation. This helps safeguard the integrity of the investigation and prevents later discussion about the fact that the employee was allowed to keep working despite the suspicion. In short, taking this step also makes the situation easier to explain to the judge.
Severance for culpable conduct
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In cases of “normal” culpable conduct, you are entitled to the transition payment.
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In case of gross misconduct the court can decide that you will not receive a transition payment.
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In exceptional cases, an unemployment benefit can also be denied.
Which tools are available to calculate compensation and costs upon termination?
If you want to know where you stand in case of termination, there are various handy tools available. For example, online calculators that let you easily calculate the transition payment you are entitled to, or what the (possible) costs of a termination procedure are.With these tools you can, among other things:
- Quickly calculate the transition payment upon termination;
- Estimate the amount of any fair compensation;
- Determine what a termination compensation might be, taking your situation into account;
- Gain insight into the total costs of the termination, including legal costs and possible compensation.
Websites such as Rijksoverheid, UWV and trade unions often provide free calculators and overviews of statutory compensation. You can also find tools that prepare you for negotiations about a termination agreement, so that you are well-prepared.
How do you calculate the costs and compensation in a termination?
Various financial aspects play a role in a termination. It is advisable to gain a clear understanding in advance of the possible costs and compensation, so that as an employer you are well-prepared. Consider the following:
- Transition payment: Determine what the employee is entitled to based on length of service and salary.
- Fair compensation or damages: Is sometimes awarded by the court, for example in cases of seriously culpable conduct by the employer.
- Costs of a dismissal procedure: Take into account legal fees, any lost wages during the proceedings, and litigation costs.
- Advice on negotiations: By understanding the financial position, you can make well-founded choices for an appropriate termination compensation.
There are various online calculators from independent organizations and industry associations with which you can quickly estimate the expected dismissal costs and compensation. This way you go into the conversation or the negotiation well prepared.
Examples from practice
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Example 1: An employee was consistently late, despite warnings. The judge ruled that this was culpable and terminated the contract, but did award a transition payment.
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Example 2: An employee consistently refused to carry out their supervisor’s instructions. This was considered seriously culpable: no transition payment.
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Example 3: An employee made a serious mistake, but had always performed well and had not previously been warned. The judge rejected the dismissal.
Checklist for dismissal for culpable conduct
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📄 Ask the employer for concrete evidence.
Always start by collecting objective information about the situation. Record all relevant documents, emails, and other evidence immediately and make sure you secure them. In discussions about culpable conduct, everything revolves around evidence: a well-documented file strengthens your position.
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⚖️ Check whether you have previously been warned.
Have any formal warnings been given? Check whether they have been recorded in writing and keep copies.
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📝 Check whether an improvement plan was offered.
Check whether you were given the opportunity to improve your conduct or performance, for example through an improvement plan or coaching program. If this did not happen, you are often in a stronger position
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💶 Check whether you are entitled to a transition payment.
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📞 Have your case reviewed by an employment law attorney.
Common mistakes
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Thinking that a single incident always justifies dismissal.
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Not objecting to an unjustified dismissal.
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Forgetting that the employer must build a dossier.
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Agreeing too quickly to a settlement agreement without negotiating.
Frequently asked questions (FAQ)
1. What is the difference between culpable and grossly culpable conduct?
For grossly culpable conduct, you forfeit your right to the transition payment.
2. Does the employer have to warn me first?
In most cases, yes, except in cases of very serious misconduct.
3. Am I entitled to WW if dismissed for misconduct?
Sometimes yes, but in cases of serious misconduct it can be denied.
4. Can I challenge a dismissal for misconduct?
Yes, you can go to the subdistrict court or negotiate a VSO.
In practice, it is quite common that a dismissal for misconduct does not immediately lead to a lawsuit, but that the employer and employee decide to sit down together. Often, they then choose a settlement agreement (VSO). In such an agreement, both parties set out the terms under which the employment ends, usually with particular attention to the financial settlement. This can sometimes be preferable to a lengthy court procedure and gives you the chance to influence the arrangements around your departure.
5. Can a lawyer help with these kinds of cases?
Yes, a lawyer can present a defense and often help preserve severance pay or WW eligibility.
Why Arslan Advocaten?
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Specialized in dismissal and employment law
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Checking whether culpable conduct is justifiably alleged
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Litigate in court or negotiate via VSO
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Regularly achieve higher compensation or reinstatement of employment
Conclusion
Dismissal for culpable conduct or omission is only possible with serious and demonstrable blameworthy behavior. Often, the employer needs a file and you must have been warned first. As an employee, you therefore often have strong defenses.
