The term “employee”

Pursuant to art. 1 part b Extraordinary Labor Relations Decree 1945, the employee is first and foremost the person who performs work on the basis of an employment contract (see Article 7: 610 BW; see Part 1 2.4). Subsequently, an employee is also the person who performs personal work for another person. This means that the nature of the contract on the basis of which the work is carried out is not important, but the fact that the employee is obliged to perform personal work.

For example, the scope of the Extraordinary Labor Relations Decree 1945 falls within the scope of the work performed on the basis of a lease. Work will often be performed on the basis of a contract for services (see the articles on advocaatarbeidsrecht.org/). This does not alter the fact that the Supreme Court does require the person concerned to perform the work personally. What if an employee is replaced by another? In that case, it is arguable that the criterion used is that the employee generally carries out the work himself.

This means that if the replacement occurs exceptionally, this involves the personal performance of work. Being replaced by someone else also plays a role when it comes to a situation in which there is no obligation to perform work personally, which may be the case with newspaper and magazine deliverers. If replacement takes place regularly, there is no employment relationship within the meaning of the Extraordinary Labor Relations Decree 1945. This is therefore the case if the delivery person concerned always or nearly always performs the work himself. In that case, practice and not the letter of the agreement is decisive.

This means that in fact everyone who works in an economic dependency relationship is brought under the scope of the Decree. This means that the Extraordinary Labor Relations Decree 1945, for example, applies to the employment relationship of:

– commercial agents

– freelancers

– editors-in-chief

It comes down to the explanation of the termination agreement. Another question is what status a termination agreement has. If both parties wish to conclude such an agreement with the aim of ending or preventing an uncertainty or a dispute, the question arises whether there is a settlement agreement. Then attention is paid to the legal consequences of the termination agreement.

As long as the offer has not been accepted and the written acceptance has not yet been sent, the offer may be withdrawn (see art. 6: 219 paragraph 2 of the Dutch Civil Code). The withdrawal of the offer is not bound to any particular form (see art. 3:37 paragraph 1 BW). Moreover, it is also important that the person who is pushing for termination not only declares his actual will to do so, but also that there is a statement that may be interpreted as such by the other party (see Articles 3:33 and 3: 35 BW).

Finally, it is possible that a validly concluded termination agreement can be annulled, namely if one of the parties acted under the influence of a so-called lack of will at the time of the conclusion of the agreement. For a more in-depth explanation you can visit https://arbeidsrechtadvocaat.org/ and read well written posts about this subject. 

A “clear and unambiguous statement”

Because the employee’s side is concerned with a voluntary termination of the employment contract, this has very far-reaching consequences for him. Not least of these is the loss of employment and the associated loss of income