An employer can dismiss an employee for culpable acts or omissions. This means that the employee has done or omitted something that is so serious that continued employment can no longer be expected from the employer. However, an employer may not simply cite this as a reason for dismissal: the judge will strictly assess whether this is justified.
In this article we explain when culpable conduct occurs, what consequences this can have and how you can defend yourself.
The various grounds for dismissal and procedures in employment law
There are various routes and grounds that can play a role in the event of discharge. Labor law distinguishes the following important procedures:- Termination by operation of law: The employment contract expires automatically, for example in the case of a temporary contract that is not extended.
- Termination by mutual consent: Employer and employee decide together, often recorded in a settlement agreement, to terminate the employment relationship.
- Termination without permission from theUWV: Possible in the event of dismissal during the probationary period, summary dismissal, retirement, bankruptcy of the employer, or as an employee himself cancels.
- Cancellation with permission from theUWV: Permission from theUWV is required in the event of dismissal for economic reasons or long-term disability (ill for more than two years).
- Dissolution via the subdistrict court: The employer hereby requests the judge to terminate the employment contract due to other grounds, such as a disturbed employment relationship or dysfunction.
- Solutive conditions and death: Sometimes the contract contains specific provisions that automatically terminate the employment relationship in certain situations – such as death.
What is culpable act or omission?
Culpable acts or omissions occur if an employee deliberately or seriously carelessly exhibits behavior. Examples are:
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Repeatedly arriving late or staying away without a reason.
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Refusal of reasonable orders from the employer.
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Violation of safety regulations.
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Breach of confidential information or confidentiality.
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Unprofessional or disrespectful behavior towards colleagues or customers.
👉 Not every mistake or incident is blameworthy. It must concern serious or repeated behavior.
When can dismissal take place?
When making an assessment, a judge looks at:
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The severity of the behavior.
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Or the employee has been warned.
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Whether an improvement program has been offered.
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The consequences for the organization.
The employment contract can only be terminated if the employer can demonstrate this.
Note: In practice, a distinction is made between “culpable” and “seriously culpable” actions. If there is serious culpable behavior (such as theft, fraud or violence), the judge can immediately terminate the employment contract—often without the right to a transition payment. In the case of less serious culpable actions, a procedure usually follows via the subdistrict court. In that case, the salary continues until the end of the notice period and the employee is entitled to a transition payment. In termination proceedings, the employee is often suspended until the court makes a ruling. The chance of dissolution is greater nowadays, because the threshold for what counts as culpable is lower than before—but the judge continues to assess strictly.What role do position and personal circumstances play?
The judge not only looks at what exactly happened, but also at the employee's position and the personal circumstances. For example, someone with a managerial task, role model or confidential position is often expected to be extra careful. In those cases, stricter requirements are imposed on behavior. Personal circumstances also play an important role. Consider:- Age of employee.
- Number of years in service.
- Education level.
- Chance of finding another job.
- Importance in maintaining income.
- Private situation and any personal problems.
Why is hearing both sides important in investigations into culpable conduct?
A careful investigation into (possibly) culpable conduct always starts with hearing both sides. This means that the employee is given the opportunity to give his or her side of the story before conclusions are drawn. This is not only fair to the employee, but also essential for a well-informed decision. By actively listening to what the employee has to say:- The employer may receive important information that puts the incident in a different light.
- Misunderstandings or incorrect assumptions are often avoided.
- The employer strengthens its own position if a (legal) conflict arises, because the file is better structured.
Is reinstatement mandatory in the event of dismissal due to culpable conduct?
No, relocation is usually not an option in these cases. In the event of dismissal due to culpable actions or omissions, the employer does not have to offer an alternative position within the company. The law explicitly states that if the behavior is so serious that dismissal is justified, it is not considered reasonable to investigate reinstatement. In other words: if trust has been seriously damaged by the employee's behavior, the employer can immediately say goodbye, even if there would normally be redeployment options within the organization.Summinary dismissal or through the courts?
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In the case of very serious culpable conduct (e.g. theft, fraud, aggression), summary dismissal may follow.
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In other cases, the employer must go to the subdistrict court to have the employment contract terminated.
Should an employee be suspended if serious culpable conduct is suspected?
If there is a suspicion of seriously culpable behavior—such as theft, fraud or aggression—it is usually wise to suspend the employee during the ongoing investigation. This helps to guarantee the integrity of the investigation and prevents discussion afterwards about the fact that the employee was allowed to continue working despite the suspicion. In short, by taking this step the situation also becomes more explainable to the judge.Severance compensation for culpable conduct
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For “normal” culpable conduct, you are entitled to the transition compensation.
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In the case of serious culpable conduct, the judge may determine that you will not receive a transition payment.
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In exceptional cases, unemployment benefits may also be refused.
What tools are available to calculate discharge benefits and costs?
If you want to know where you stand upon discharge, there are several useful tools available. For example, consider online calculation tools that allow you to easily calculate what transition compensation you are entitled to, or what the (possible) costs of a dismissal procedure are. These tools allow you to:- Quickly calculate the transition compensation upon dismissal;
- Estimate the amount of any fair compensation;
- Determine what a termination fee may be, taking into account your situation;
- Understand the total cost of dismissal, including legal fees and potential compensation.
How do you calculate costs and compensation in the event of dismissal?
Various financial aspects play a role when you are dismissed. It is wise to gain a good insight in advance into the possible costs and reimbursements, so that you as an employer are prepared. Consider:- Transition compensation: Determine what the employee is entitled to based on length of employment and salary.
- Fair compensation or compensation: Is sometimes awarded by the judge, for example in the event of seriously culpable conduct by the employer.
- Costs of a dismissal procedure: Take into account legal costs, any missed wages during the procedure and legal costs.
- Advice on negotiations: By gaining insight into the financial position, you can make well-founded choices for an appropriate termination payment.
Practical examples
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Example 1: An employee was consistently late, despite warnings. The judge ruled that this was culpable and terminated the contract, but did award transition compensation.
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Example 2: An employee consistently refused to carry out orders from his manager. This was seen as seriously culpable: no transition compensation.
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Example 3: An employee made a serious mistake, but had always performed well and had not been warned before. The judge rejected dismissal.
Checklist for dismissal due to culpable conduct
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📄 Ask the employer for concrete evidence.
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⚖️ Check if you have been warned before.
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📝 Check whether an improvement program has been offered.
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💶 Check whether you are entitled to a transition payment.
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📞 Have your case reviewed by an employment law lawyer.
Common mistakes
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Thinking that one incident always justifies dismissal.
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Do not object to an unfair dismissal.
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Forgetting that the employer has to build up a file.
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Agreeing to a VSO too quickly without negotiating.
Frequently asked questions (FAQ)
1. What is the difference between culpable and seriously culpable conduct?
In the event of seriously culpable conduct, your right to transition compensation lapses.
2. Does the employer have to warn me first?
In most cases, yes, except for very serious behavior.
3. Am I entitled to unemployment benefits if I am dismissed due to culpable conduct?
Sometimes yes, but this can be refused in the event of seriously culpable conduct.
4. Can I challenge a dismissal due to culpable conduct?
Yes, you can go to the subdistrict court or negotiate a VSO.
In practice, it often happens that a dismissal due to culpable conduct does not immediately lead to a lawsuit, but that the employer and employee decide to sit down together. A settlement agreement (VSO) is often chosen. In such an agreement, both parties agree on the conditions under which the employment relationship ends, usually with special attention to the financial settlement. This can sometimes be more pleasant than a lengthy court procedure and gives you the opportunity to influence the agreements surrounding your departure.
5. Does a lawyer help with these types of cases?
Yes, a lawyer can defend you and often ensure that you retain compensation or unemployment benefits.
Why Arslan Lawyers?
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Specialized in dismissal and employment law
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Check whether culpable conduct is correctly alleged
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Litigate in court or negotiate via VSO
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Regularly achieve higher compensation or reinstate employment
Conclusion
Dismissal due to culpable actions or omissions is only possible in the case of serious and demonstrably culpable behavior. The employer often needs a file and you must have been warned first. As an employee you often have strong defense options.