In a heated conversation, an employee makes a comment like “I’m not coming back here” or “I quit”. Can this be seen as a termination of the employment contract? If an employee terminates the employment contract and thus unilaterally resigns, this can have serious consequences for the employee, such as the loss of entitlement to unemployment benefit and the transition allowance. An employee’s termination of the employment contract must therefore be clear and unambiguous. When may an employer understand that an employee has terminated the employment contract? And does an employer have a duty to investigate? We explain below!
Duty to investigate
According to established case law, an employer must carefully check whether the employee really wants the termination of the employment contract with all the associated adverse consequences. An employer may therefore not too quickly assume that an employee’s comment is aimed at termination of the employment contract and must investigate whether the employee actually wants termination of the employment contract and can foresee the consequences thereof. How far this duty to investigate goes depends on the circumstances of the case.
The obligation to investigate is heavier if an employee has terminated very unexpectedly or in an emotional conversation. Moreover, the employee’s personal circumstances also play a role here. For instance, if an employee is emotionally less stable because a major event in his life has just taken place, it may be assumed less quickly that an employee actually wanted to quit. However, personal circumstances may also mean that an employer is more likely to assume that an employee will oversee the consequences of the dismissal, for instance if he holds a higher position where he is deemed to have sufficient skills to oversee the consequences of his statements and behaviour.
An employer should additionally make an employee aware of the consequences of termination. The employer must ensure that an employee understands that he will lose his right to an unemployment benefit and a transition allowance, among other things.
If circumstances call for it, a prudent employer can be expected to give an employee a reflection period after the employee has made a remark that could be construed as a notice of termination. This then applies even if the employee indicates that he does not need it.
Often, the employment contract or the collective agreement stipulates that the employee’s notice of termination must be in writing. It is therefore a good idea to ask an employee who has given notice of termination to confirm this in writing, in addition to complying with the above-mentioned duty of investigation and reflection period.
As an employer, you may find that you interpret an employee’s comment as a notice of termination. If this is the case, we recommend checking whether the employee actually meant this notice, taking into account all the circumstances of the case. An employer is also well advised to inform the employee in writing about the consequences of the termination and, if the circumstances demand it, to give the employee a reflection period, even if the employee indicates that he does not want this. In addition, we also recommend having the employee confirm the termination in writing.
As an employee, it is important to know that your employer may not simply take the position that a heated remark by you that could resemble a termination may actually be considered a termination.
Are you dealing with an employee who has made a comment that makes you think he has quit? Or is your employer holding you to your notice but you did not mean to? Contact us and we will be happy to advise you further!