The Date on Which Settlement Is Reached
A discussion of the judgment of the Subdistrict Court of
Amsterdam dated 10 June 2008, JAR 2008/227
Fictitious Notice Period
The employee whose employment agreement is terminated may, under
conditions, claim an unemployment benefit. One of these conditions
is that the employee may not be voluntarily unemployed. Since 1
October 2006 an employee is no longer voluntarily unemployed if he
agrees to a termination of his employment agreement by mutual
consent. The unemployment benefit starts as soon as the employee
becomes unemployed. However, if the employee has been awarded
compensation, the fictitious notice period must be taken into
account. In the event of a termination by mutual consent, the
fictitious notice period starts after the date on which the
termination agreement has been agreed upon in writing and amounts
to - briefly summarized - the notice period less one
month.
The Case Before the Subdistrict Court of
Amsterdam
The case under discussion before the Subdistrict Court of
Amsterdam related to an employee and an employer who agreed that
the employment agreement would be terminated as of 31 March 2007,
with a compensation being granted. The final agreement was realized
after the employer had informed the employee in a letter dated 20
February 2007 that he consented to the conditions set out by the
employee. As a result of this consent there was full agreement
between the parties. Next, on 23 February 2007 the employee signed
the settlement agreement and returned this agreement to the
employer, after which the employer signed this agreement on 1 March
2007. Because the settlement agreement had not been signed before 1
March 2007 but on 1 March 2007, the UWV (Employee Insurance
Implementing Body) decided that the unemployment benefit would not
start on 1 April 2007 but on 1 May 2007. After all, the fictitious
notice period, according to the UWV, only started on 2 March 2007.
Next, the employee took the position that the employer had to pay
the wages over March 2007 to the employee now that he had signed
the settlement agreement too late.
Which Date is
Decisive?
The Subdistrict Court rejected the position of the employee and
ruled that, all correspondence between the parties being viewed in
its coherence, on 20 February 2007 the requirement was met that the
termination of the employment agreement had to be agreed upon in
writing. According to the Subdistrict Court, this view is also in
line with practice, because termination agreements are often
realized by consecutive correspondence between the parties (or
their representatives). Therefore, the fact that the settlement
agreement was not signed until a later date did not alter the fact
that written agreement on the termination of the employment
agreement had already been reached.
Tips
- If in the event of termination of the employment agreement
the employee is awarded compensation, the employee must take
into account that he will only receive an unemployment benefit
after the fictitious notice period has been observed;
- The fictitious notice period starts at the moment when
written agreement has been reached between the parties about
the conditions under which the termination of the employment
agreement takes place.
- What is relevant is the date on which the conditions have
been confirmed by the parties. This confirmation may also be
made in the correspondence. If need be, it should be set out in
a later settlement agreement that the agreement has already
been reached before.