Reorganizations are of all times. Companies ‘restructure’ their organization to respond to future developments or have to reorganize because their financial situation is bad. A reorganization is often accompanied by the dismissal of employees.
How do you approach a reorganization as a company? What rules apply and what are the pitfalls? In a series of blogs, I explain what the most important points of attention are to achieve a successful reorganization.
If an employee is eligible for dismissal on the basis of the proportionality principle, his employment contract cannot yet be terminated. The law stipulates that the employer can only terminate an employment contract if the employee cannot be reassigned to another suitable position within a reasonable period of time, whether or not with the aid of training. The employer will therefore first have to investigate whether reassignment is reasonably possible. The employer does not have to carry out this investigation if reassignment does not make sense. This may be the case if the company closes completely and no other branches remain.
What is an appropriate function?
According to the rules of the UWV, this is a job that matches the education, experience, and capabilities of the employee (or for which he can be suitable within a reasonable period with the help of training). This usually looks at the level of the job that an employee already does, but that is not necessary. Jobs that are one job level lower or higher can often also be regarded as suitable. That also depends on the circumstances. For example, if an employee performs insufficiently, this will more likely be a reason to designate positions at a lower level as suitable.
A suitable job should take into account the subjective and personal possibilities of the employee and what other jobs the employee could perform in view of his personal background, experience, and capabilities. Note: a matching function should not be confused with an interchangeable function that I wrote about in my previous blog about the mirroring principle. Interchangeability is an objective test based on the job profile, which does not look at the skills of the individual employee.
Vacancies and/or other positions
The reassignment investigation must take into account positions for which a vacancy already exists or for which a vacancy is expected to arise within a reasonable period of time. The reasonable term is equal to the statutory notice period for the employer and commences on the date on which the UWV decides on the application for dismissal. The notice period for the employee is one to four months, depending on the length of employment. In general, the UWV decides within four to eight weeks after the application for dismissal has been submitted. Depending on the notice period, the employer must therefore look at least two, but possibly even five months ahead.
The employer should not only look at existing or future vacancies. He must also look at suitable positions that are filled by other workers such as temporary workers, hired personnel, on-call workers, employees entitled to the state pension, and employees whose employment contract ends within a reasonable period. These employees must make way for a supernumerary employee with a ‘permanent contract’ unless the activities of those employees are temporary (for a maximum of 26 weeks).
Schooling
If a position is not suitable but can be made suitable within a reasonable period with the help of training, the position will still be considered suitable. Training should include a (short-term) education or course that allows the employee to be deployed in the position within a reasonable reassignment period. This training is only required if it actually makes a job suitable. The employer cannot, therefore, be obliged to retrain or retrain an employee if there is no prospect of reassignment to a suitable position. Which training the employer must offer depends on the duration and the costs of the training or education. The financial situation of the company can play a role in this.
