Enough is enough

Enough is enough

Is it wise to introduce the possibility to appeal in dismissal cases, since quick dispute resolution (and preventing uncertainty) are essential in employment cases?

Dismissal protection law is unfair and inflexible. Economists say so, the EU and OECD say so. Even Dutch labour lawyers and scholars are of the view that it leaves a lot to be desired. It offers too much protection to insiders (older workers with a contract for an indefinite term). Outsiders - younger workers on fixed-term contracts – are hardly protected. A heated debate about the scope and purpose of dismissal protection law has been going on for the last 20 years or so. It has led to some cosmetic surgery, but not to fundamental changes.

One would expect that the reform proposals presented recently – Wet Werk en Zekerheid (Work and Security Act) – would have been welcomed by practitioners and scholars. The so-called social agreement concluded last spring by government, employers and employees that inspired those proposals entails major changes to the current system. At last, the emergency labour market decree of 1945 will be revoked. WW II will end, finally, in the Netherlands as well. The first comments indicate that the general feeling is that our dismissal law is getting even more complicated. (Which was hotly denied by employers’ chairman Wientjes, who stated that the new system would lead to a € 1 billion reduction in legal costs in dismissal cases. That would be quite an achievement, since at present legal fees amount to, at most, a few hundred millions.) I have written on these pages before that the system in place is so rotten that any change would make things better, but I might have to retract that bold statement. As far as improvement is concerned, I stand by my claim that the current system is unfair, incomprehensible and indefensible.

But, to put it very mildly, the Wet Werk en Zekerheid leaves quite a few things to be desired. In the end an enemy we know - and with which we have learnt to deal with over the last 70 years or so - might be better than this new one.

A major problem with the proposals is the introduction of appeal and appeal in cassation with the Supreme Court in cases of dissolution of employment contracts. At present, the possibility of dissolution of employment contracts by a judge (kantonrechter) alleviates the difficulties and uncertainties experienced by employers and employees. Within a few weeks they can get a final binding judgment on the termination of their contract and the damages to be paid. Dissolution proceedings tend to be quite informal and there is no possibility for appeal.

It could be argued that remedies should be available in dismissal cases too, since appeals are also possible in far more trivial cases, e.g. squabbles about hedges between neighbours or flight delays to the sunny beaches of Spain. Employment is, however, far too important for that. It is so essential to a person’s wellbeing that quick decisions are of the essence. I have witnessed too many workers in dismissal proceedings who were very much hurt by the lengthy proceedings and the stress it involved. They were sometimes in tears in court and nearly always at least visibly affected. In the end, they did not get their job back, even though they were wrongly dismissed. Their employer (and colleagues) had moved on and reinstatement was no longer a feasible option. On the other hand, lengthy dismissal proceedings are quite difficult for employers as well. When are they allowed to move on?

I would therefore advocate a system of judicial scrutiny of dismissal in one and final instance. We would lose the possibility of setting straight errors, but would win a lot of speed. It would enable both worker and employer to move on sooner. Furthermore, courts of appeal or supreme courts for that matter are not infallible either. A more or less summary judgment by the kantonrechter might not be a bad thing. As one of the Netherlands most famous kantonrechters put it: dit is mijn oordeel, en hier moet u het mee doen (this is my judgment, deal with it).