Legal advice: Anyway severance pay for dormant employment
Mrs. Dirkszoon is completely disapproved. Her employer refuses to fire her in order not to have to pay severance pay (transition allowance).
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Mrs. Dirkszoon has worked on a roc for years. At the end of her career, the educational innovations and the changing group of managers have taken a toll on her health. Ultimately, after a two-year illness trajectory, she was completely rejected and she receives a benefit under the Work and Income according to Labor Capacity Act (Wia). However, to her surprise, she is not fired. When she asks her employer about this, she is told that dismissal is not necessary. She has a strange feeling about this and seeks contact with the AOb.
Transition fee
On 1 January 2015, the Work and Security Act (Wwz) entered into force in phases. This law has radically changed dismissal law. One of the changes concerns the so-called transition payment. This compensation is roughly calculated on the basis of the monthly salary and the duration of the employment contract and can amount to 77 thousand euros. Under certain circumstances (for example, the scheme does not apply to public education), this compensation is payable to the employee upon dismissal. Also in the case of dismissal due to incapacity for work after two years of illness, as was the case with Mrs Dirkszoon.
Formality
However, employers are reluctant to pay this fee. That is why they sometimes formally maintain the employment contract. After the second year of illness, there is no obligation to continue paying wages for employees who are incapacitated for work in MBO, where Mrs. The incapacitated employee no longer has to work either. Employment has thus become a formality. This is also called dormant employment.
Legally, little can be said against this practice. Even the most recent case law indicates that employers are allowed to do this. They are not obliged to resign. And a dismissal cannot be forced by an employee. What many employers do not realize, however, is that, on the basis of the ABP pension scheme, they are obliged to continue to pay the pension premium on the basis of the old salary. Both the employer part and the employee part. They cannot recover this last part from the employee, according to the ABP regulations. The employee thus accrues unchanged pension.
Calculation
Ms Dirkszoon's employer was also not aware of the pension regulations and believed that he would have to pay neither a transition payment nor a pension premium. The AOb informed her employer that a compulsory pension contribution must be paid as long as Ms Dirkszoon is employed. After some email exchange and contact with the ABP, the employer made a calculation for himself and set the pension premium against the amount of the transition payment. This ultimately led to a formal dismissal and the payment of the transition allowance to Ms Dirkszoon.
This article appeared in the Education Magazine of December 2017. The Education Magazine publishes practical experiences every month AOblawyers.
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