Ernstig verwijtbaar handelen by the employee under Dutch law
Under Dutch dismissal law, an employee who is dismissed on the e-ground (e-grond) - serious culpable acts or omissions (ernstig verwijtbaar handelen of nalaten van de werknemer) - forfeits the statutory transition payment (transitievergoeding). This exception is laid down in Article 7:673 paragraph 7 sub c of the Dutch Civil Code. The bar for establishing serious culpable conduct is deliberately set high: ordinary misconduct or underperformance does not suffice.
Examples of conduct that courts have recognised as ernstig verwijtbaar include: repeated serious alcohol or drug abuse at work after warnings, deliberate fraud or theft at the expense of the employer, serious sexual harassment of colleagues, gross negligence causing significant damage, and deliberate violation of safety rules with dangerous consequences. Courts assess all circumstances of the specific case and do not apply a bright-line rule.
Interaction with the e-ground for dismissal under Dutch law
The e-ground in Article 7:669 paragraph 3 sub e of the Dutch Civil Code allows the employer to request dissolution of the employment contract by the kantonrechter (subdistrict court) on grounds of seriously culpable acts or omissions by the employee. The employer must demonstrate not merely misconduct, but conduct so serious that it would be unreasonable to expect the employment to continue even temporarily. The e-ground is therefore rarely granted in practice; most misconduct dismissals are processed on the d-ground (regularly culpable conduct) or via summary dismissal.
Partial retention of transition payment under Dutch law
Even where serious culpable conduct is established, the court retains discretion to award a partial transition payment if withholding the full amount would be manifestly unreasonable given the circumstances. This safety valve is important in practice: courts are reluctant to deny the full transition payment where the employer has contributed to the situation or where the employee's livelihood would be severely affected. The billijke vergoeding (fair compensation) plays a separate role and does not substitute for the transition payment where serious culpable conduct is found on the employee's part.
The e-ground for dissolution (Article 7:669(3)(e) of the Dutch Civil Code) and the concept of ernstig verwijtbaar handelen for transition payment forfeiture (Article 7:673(7)(c)) are related but not identical: the e-ground requires conduct so serious that the employer cannot reasonably be expected to continue the employment even temporarily, while the forfeiture rule asks specifically whether the dismissal resulted from the employee's seriously culpable acts. Articles 7:678 and 7:679 of the Dutch Civil Code list non-exhaustive examples of urgent reasons for summary dismissal - including theft, deliberate deception of the employer, persistent refusal to follow reasonable instructions, and gross neglect of duties - and courts draw on these same examples when assessing ernstig verwijtbaar handelen in dissolution proceedings, while always accounting for all specific circumstances of the case.