If an employee commits serious transgressions, the employer may give an official warning. This should encourage the employee not to commit further violations. It can also help with any follow-up steps and ultimately a dismissal procedure.
The law does not prescribe in which cases an employer may or may not issue a warning, how the warning must be given, or how long a warning remains valid. There is a relationship of authority between employer and employee, on that basis, an employer may issue warnings.
A violation can be an act of the employee, but also a failure to fulfill a certain obligation (negligence).
An employee must always behave as a 'good employee’. This includes, for example, that they refrain from aggressive, antisocial, or disrespectful behaviour toward colleagues. The employee must act and behave as one may expect from an employee in their position. If not, the employer can issue a warning regarding this behavior.
Further agreements between employer and employee can be found in the employment contract, The
The official (written) warning follows after an employee has been addressed or warned verbally (several times). Do know that this is not mandatory by law. The employer may also decide to give the warning in writing immediately or to confirm a previous oral warning in writing.
The reason to choose for a written warning is that this often makes more of an impression than a verbal warning would achieve. This makes it more likely to refrain the employee from further violations. Law states that the official written warning must be added to the employee's personnel file (evidence). The importance of adding the official written warning lies in the file construction regarding the violations of the said employee. The written warning may be used as a prelude to other disciplinary action, such as the employee's suspension or termination within the organization.
Contents of the official warning letter
- The violation: a description of the committed violation of the employee, dated on the day the violation was committed
- Employee response: if/when a conversation has taken place with the employee prior to the warning regarding the violation, any acknowledgment of the violation, protest or explanation by the employee can/will be included in the warning letter. The employer's response to this can also be included in the warning letter. As a result, the warning letter immediately forms a conversation rapport.
- Previous warnings or complaints
- Rules/regulations within the organization
- Sanction in case of repetition: the sanction that follows if they commit another wrong step will be made clear. It is important that the employee realizes that repetition of the violation may lead to suspension or resignation from the organization.
If there is a suspension, you are temporarily not allowed to work. There must be a very good reason for this. For example, if the employer suspects that there is an urgent reason for dismissals, such as fraud or theft. During the suspension, the employer can/will conduct an investigation. Suspension is a disciplinary measure. The employer must state the reason for the given suspension in writing and explain the further procedure. The employer must also give the employee an indication of the period of suspension and what the process will entail during the suspension.
A non-active status occurs when the employer temporarily prevents an employee from performing their work. For example, to provide scope for finding a new job in the event of dismissal. The terms 'disqualification' and 'exemption from work' are often used interchangeably and are not explicitly described in Dutch law. However, a regulation may be included in the collective labor agreement or employment contract regarding suspension and non-active status.
Wage suspension and pay freeze
In the event of a pay suspension, the pay is temporarily withheld from the employee. For example, pending an investigation. When the investigation confirms that the employee has not committed the transgression, the employer must pay the withheld wages.
In the event of a wage freeze, the wage will certainly not be paid. The employee must still comply with his obligations toward the employer. As soon as they comply, the wages will be paid from that moment on. The wages for the intervening period during the pay suspension are forfeited to the employee.
As of 1 January 2020, the rule applies: no work, still pay, unless the lack of work is at the expense and risk of the employee. The employer must prove that the employee is not entitled to salary. A judge may give the final verdict on whether or not to refuse to pay wages.
Dismissal and instant dismissal
If the employer can demonstrate, for example by demonstrating that here have been given several warnings, that there is no improvement, then termination of the employment contract can be initiated by the employer. Different grounds for dismissal can be combined.
In the event of a valid reason for instant dismissal, the employment contract will be terminated with immediate effect. The employer does not have to go to the magistrate for this.
Number of warnings
There is no legally prescribed number of warnings before the employer may proceed with dismissal. It is often thought that this is allowed automatically after 3 official warnings, but by law, this is not correct. However, it could be, provided the violations are serious enough, and the warning letters are clearly stated that resignation can be initiated. It also matters how much time elapsed between the violations and whether the transgressions vary from each other. If the employer has stated clearly that a 'last official warning', containing the announcement regarding immediate dismissal will follow for the same behavior, a lot more clarity has been created.
Shipment and storage
Shipment is done by registered post and by e-mail. Or possibly by handing over and having the employee sign for receipt (and for seen). A copy is always stored in the personnel file and given to the employee.