Dismissal with immediate effect: investigation and immediateness

A dismissal with immediate effect must be given without delay, otherwise it is not valid. However, the reason for the dismissal must be established. How much leeway do employers have for conducting or having conducted investigations before proceeding with dismissal with immediate effect?

A dismissal with immediate effect must meet three conditions:

1. There is an urgent reason
2. The termination must be immediate
3. There must be immediate notificationof the urgent reason

In some cases, the urgent reason is immediately obvious, such as when an employee is caught in the act of stealing. In other cases, such as administrative fraud, a thorough investigation may be required. Then the question is how long the employer may continue to investigate before issuing dismissal with immediate effect. The Supreme Court has provided more clarity on this in two rulings.

Investigation of urgent cause

In the first ruling (with a comment by Jan Dop, LL.M.), the Supreme Court indicates that the employer may proceed to dismissal with immediate effect when the urgent reason is established. Then, no further investigation is necessary.

The employer in this case had hired an investigative firm after suspecting that some employees had committed fraud. That was the case, and as a result of an initial report, the employer was already proceeding with dismissal with immediate effect. However, the investigation was far from complete and the employees had not yet been heard either. An employee in this case therefore defended himself against the dismissal by arguing that the investigation was incomplete and that there was therefore no urgent reason. With this he managed to convince the Amsterdam Court of Appeal, but not the Supreme Court. The latter rightly ruled that the quality of the investigation into the urgent reason is irrelevant to the question of its existence.

Thus, an employee cannot challenge a dismissal with immediate effect merely because he was not heard before being dismissed or because an employer does not go through all steps of an investigative process, even if the employer has promised to do so. However, there may be a good explanation for the employee’s actions. Moreover, when assessing whether an urgent reason exists, the employer must also consider, among other things, the consequences of the dismissal for the employee.

Immediate dismissal after investigation

Another question is at what point does an employer who commissions a thorough investigation still meet the requirement that the dismissal be immediate. May the employer wait for the completion of the investigation? Or does he have to dismiss in the interim? In the second case, the Supreme Court formulated some criteria to be used in answering these questions.

Also in this case, the employer suspected that an employee was committing fraud and an investigative firm was hired. However, whereas in the first case the employee complained that he was dismissed to soon, in this case the employee actually argued that the dismissal was given too late, because it was not immediate.

Several fraudulent actions by the employee had come to the employer’s attention, each of which was sufficient for immediate dismissal. However, the employer had waited for more than a week and during that time investigated two new cases of fraud. The old and the new cases together were stated in the dismissal letter as the urgent reason for dismissal. The Arnhem-Leeuwarden Court of Appeal annulled the dismissal because there was already sufficient evidence of the existence of an urgent reason and it was therefore not given immediately. Therefore, the employer should not have waited ten days. On the two new cases of fraud, the Court of Appeal did not go into further detail.

In response, the employer went to the Supreme Court and argued, among other things, that the Court should not have ignored these two new urgent reasons. He was proven right. There was a composite urgent reason, which means the Court should have assessed the entire urgent reason and not just part of it. In addition, the Supreme Court formulated 4 criteria by which judges can assess whether a dismissal was given without delay, when the employer has to investigate the presence of an urgent reason for dismissal:

1. The employer conducted or had conducted a sufficiently expeditiously investigation of suspected involvement in irregularities
2. The investigation was conducted sufficiently expeditiously
3. The employer has kept himself informed sufficiently expeditiously of the findings of the investigation, including interim findings
4. After becoming aware of them, the employer has sufficiently expeditiously proceeded to the dismissal with immediate effect

Given these criteria, it remains to be seen whether the employer in this case will still be vindicated by the court that will hear the case again. After all, although the court must deal with the entire composite reason, it must also assess whether the further investigation by the employer was still necessary. Employers in new cases will benefit more from these criteria. They make it clear that it is dangerous for employers to rely too much on thoroughness and wait too long before giving dismissal.

Tips

• Do not wait too long to investigate or have an investigation conducted if fraud is suspected
• Arrange that there will be interim reports in the event of a larger investigation
• If the urgent reason is truly established, dismiss the employee without delay
• It is easier to further substantiate an urgent reason than to fix immediateness – ”too late is too late”

Employment lawyers

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