Determining the order of discharge
If an employer has a commercial reason for dismissal and decides to implement the reorganization after advice from the Works Council, the employer must determine which jobs will be lost. The employee cannot simply decide which employees to dismiss. Which employees must be dismissed (first) must be determined on the basis of the proportionality principle.
Interchangeable functions
In order to determine which employee to nominate for dismissal, it must first be determined which positions will be terminated and whether these are unique or ‘interchangeable positions’. There is a unique function if that function is performed by only one employee. If a unique function is lost, the reflection principle does not have to be followed.
There is an interchangeable position if the level of the position and the remuneration is equivalent to those of another position. The content of the positions, the required knowledge, skills, and competencies must also be comparable. In assessing whether positions are interchangeable, the personal qualities of the employees who fill the positions do not play a role. Decisive is the interchangeability of the functions, not of the employees. The job/task description is therefore very important when assessing whether or not a job is interchangeable. If functions are interchangeable, the matching rules do play an important role.
First, say goodbye to ‘external’ employees
Employees who are employed for an indefinite period of time are more protected than employees with a more flexible employment relationship, such as external employees, people entitled to state pension, or employees with a fixed-term contract.
If external employees are employed within a category of interchangeable positions, the employer must first say goodbye to them. Think of temporary workers, seconded workers, or freelancers. If this does not yet (sufficiently) realize the necessary reduction in personnel, then a reflection must be done.
Reflect
When reflecting, all employees within a category of interchangeable positions are divided into 5 age groups: from 15 to 25 years, from 25 to 35 years, from 35 to 45 years, from 45 to 55 years, and from 55 years to state pension age. Subsequently, it must be determined how many employees within a certain age group should be nominated for dismissal. The distribution of the redundancies over the age groups should be done in such a way that the age structure within the category of interchangeable positions after the redundancies are proportionally as similar as possible to the situation before the redundancies.
If there are employees entitled to state pension within a certain age group, they must first be proposed for dismissal, then the employees with short – an on-call contracts, and then the employees with a fixed-term employment contract whose contract ends within 26 weeks. If an age group has already contributed sufficiently, no other employees of that age group are eligible for dismissal. If this is not the case, the order of dismissal for employees with an employment contract for an indefinite period (a ‘permanent contract’) is determined on the basis of the ‘last in, first out’ principle. The employee who has been employed for the shortest time within a certain age group is the first to be considered for dismissal.
Exception
In very specific situations it is sometimes possible to exclude certain employees from the application of the proportionality principle, for example, if the employer can demonstrate that an employee has such knowledge or skills that he or she is indispensable to the organization. An exception can also be made for an employee with an occupational disability or an employee who works for a third party and cannot be replaced.
