No transition allowance after refusing suitable position?

The court in Den Bosch ruled that, under certain circumstances, an employee who refuses a suitable function no longer has the right to payment of a transition allowance.

In principle, after dismissal, an employee has the right to the statutory transition allowance. However, the employee can loose this right due to seriously culpable conduct. The threshold for such conduct is high, and courts are generally reluctant to apply it. If an employee refuses a suitable position, this does not necessarily constitute seriously culpable conduct.

In a recent case at the court in Den Bosch, the position of an employee became redundant. In accordance with the employer’s reassignment obligation, the employer offered the employee various suitable positions.

The employee refused a suitable position twice, the main reason being the different time schedules that came with these positions. Due to the change of schedule, the employee was no longer able to travel to work together with her partner. According to the employee, it could not be expected of her to travel to work independently. Subsequently, she called in sick.

Again, the employer offered the employee another suitable position, and this time the time schedule was in line with that of the employees partner. The employee refused again, arguing that she could not accept the position due to her incapacity to work. According to the employee, the employer expected her to start working in her new position immediately after accepting the offer. The employee, furthermore, argued that she could not drive on her own due to an eye disease.

The court ruled that the employee’s argument that she would have to start her new position immediately was unfounded. Moreover, the court ruled that, even though at the time of the offer the employee was unable to work, this did not mean she could not have accepted the offer. The court also did not accept the employee’s eye disease as reason to reject the position, as the time schedule allowed her to travel together with her partner.

The refusing attitude of the employer constituted seriously culpable conduct, according to the court, meaning that the employer was not obliged to pay a transition allowance. The fact that such exceptions to the right to transition allowance should be granted cautiously did not change the courts mind in this case: “taking this into account, the situation is not just a relatively small misstep”.

Only under special circumstances does an employee loose their right to transition payment if they refuse a suitable position.

Conclusion: An employee will not without reason loose their right to a transition allowance.  Even after this case, this still holds for situations in which the employee refuses a suitable position. However, the employee in this case had crossed the boundaries by refusing a suitable position up to three times, whilst the employer was trying to find the best solution. Thus, only under special circumstances does an employee lose their right to payment of a transition allowance if they refuse a suitable position.


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