Verwijtbaarheidstoets in de WW

Thursday, 14 May 2009 14:46

The Centrale Raad van Beroep (Central Appeals Tribunal) in Utrecht gave a series of verdicts on 18 February this year concerning the question as to whether unemployment benefit should be granted to former employees or not. These verdicts could be of significance to your practice and for that reason we would like to provide you with the necessary information. If a civil servant's employment is terminated and he ends up having to rely on unemployment benefit, the UWV WERKbedrijf (social security centre) will assess whether it is a case of culpable unemployment. Should this be the case, the civil servant will not be granted unemployment benefit, or will receive it at a reduced rate. Having regard to the government employers' self-insurance, this decision by the UWV WERKbedrijf also has direct financial consequences for you as employer of the civil servant. Amendments were made to the ‘culpability assessment’ section of the Dutch Law on Unemployment (Werkloosheidswet, or WW) in 2006, for example. One of the legislator's intentions was to simplify enforcement of the WW and to render the practice of dismissal more flexible. In 2006 Article 24, second paragraph of the WW was amended, for example. Described in this article are the circumstances under which unemployment would be considered culpable, i.e. if: - urgent grounds underlie the unemployment as referred to in Article 7:678 of the Dutch Civil Code and the employee can be deemed reproachable for these;- the employment has been terminated at the request of the employee. Until 18 February this year it was unclear how restrictively this regulation had to be interpreted. The idea was widely held that no benefit would be awarded if it was a matter of disciplinary dismissal or in the event of the employment being terminated at the request of the civil servant. As it now turns out, this notion is incorrect. For it happens that even in other cases it is not certain that the civil servant that has been dismissed will be granted benefits (the cost of which will then be passed on to you by the UWV WERKbedrijf on the grounds of self-insurance). In its verdicts of 18 February this year, the Central Appeals Tribunal concluded that, if the employee is not dismissed summarily (the civil law counterpart to the civil service law disciplinary dismissal) or his employment agreement is not dissolved because of a pressing reason, it can be a matter of culpable unemployment as referred to in Article 24 of the WW. It is not the path the dismissal takes that is the decisive factor, but the reason for the dismissal. For the question as to whether it is a matter of a pressing reason and thus of culpable unemployment, a material assessment must be made for each individual case. Articles 7:677 and 7:678 of the Dutch Civil Code are normative in this regard, says the Central Appeals Tribunal. The legal precedent to which the Supreme Court pointed with respect to the interpretation and application of these articles obviously remains important in this regard. The elements that have to be weighed up within the framework of the material assessment include, for example, the subjectivity of the pressing reason, considered in mutual context with the nature and seriousness of the conduct and other relevant aspects, such as the nature of the employment, the duration thereof and the way in which the individual concerned performed his duties. Even the employee's personal circumstances, such as his age and the effects of the dismissal on him, are of significance. Finally it must be assessed whether the individual concerned can be held culpable for the reason for dismissal. As will be evident from the above, the verdicts of the Central Appeals Tribunal were made within a civil law context. However, the verdicts are of great import for your civil service law practice. Indeed, your (financial) interest as a government employer is greater than that of the civil law employer. For now that the UWV WERKbedrijf will be passing on the costs of the unemployment benefit granted to the former civil servants to you, your organization will feel the financial consequences of the relevant rulings directly. Imagine the following situation. A civil servant has been underperforming for years. His attitude and conduct are refractory, which finds expression in various incidents in which the competent authority himself, managers and immediate colleagues are perhaps being treated with open contempt. Even in terms of job content the work is far below par. Although the individual concerned has been spoken to repeatedly and guidance, coaching and improvement procedures have been followed, the work does not improve. Finally dismissal procedures are initiated. In my opinion it is entirely conceivable that the government employer in question would hold the point of view that it is a matter of culpable unemployment and that for this reason there should be no entitlement to unemployment and top-up benefits. For the employer, this could be a reason to contest a remuneratory decision from the UWV WERKbedrijf, which according to the General Administrative Law Act (Algemene wet bestuursrecht, or Awb) is possible. Your organization is also affected in the sense of the General Administrative Law Act (Algemene wet bestuursrecht, or Awb) in the case of decisions to award unemployment benefit. One of the consequences of this is that within the framework of dismissal procedures you must take the subsequent course of the matter into account, during the course of which the former civil servant will be turning to the UWV WERKbedrijf with a request to grant unemployment benefit. If you are of the opinion that it is a matter of culpable unemployment and the individual concerned should not be entitled to unemployment benefit and a top-up benefit linked thereto, you can contest a remuneratory decision made by the UWV WERKbedrijf in the capacity of interested third party. In such proceedings it will have to be contended, on the basis of the criteria imposed by the Central Appeals Tribunal in its verdicts of 18 February this year, that it is indeed a matter of culpable unemployment. I even deem it advisable to make this issue part of the decision-making process that precedes the decision to dismiss the employee, in view of the financial implications thereof. Although it is not the case that the simplification of the system intended in 2006 has become unsettled, more discussion of the question as to whether the civil servant is entitled to unemployment benefit is indeed possible due to the verdicts reached by the Central Appeals Tribunal. As an aside, we note, incidentally, that the verdicts are obviously also of significance to the civil servant, in the sense that he ought to take them into account during negotiations on leaving voluntarily. The verdicts pronounced by the Central Appeals Tribunal could lead to the way in which the agreement determining the legal relationship between the parties being formulated differently to the way in which it was done previously. We can imagine that the subject matter described above is perceived to be complex and interesting at the same time. If you wish to, we will be more than happy to exchange ideas with you on the issue described, either in a general sense or in response to a concrete situation. To this end, you can get in touch with Jan-Paul van Zanten LL M by e-mail This e-mail address is being protected from spambots. You need JavaScript enabled to view it as well as on the following telephone numbers: +31 (0)71-535 80 00 and +31 (0)6-44 88 96 14.