Doing Business in the Netherlands 2012 - American Chamber of ...

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should be offered the opportunity to render their advisory vote during the shareholders’ meeting, before the ultimate decision to dismiss the Managing Director is adopted. In principle the employment contract of the Managing Director will also end as a result of his/her dismissal during the shareholders’ meeting (i.e., the corporate and employment relationship end simultaneously). Consequently, the employer of the Managing Director does not need to apply for prior approval from the UWV to give notice of termination to the Managing Director. Nonetheless, parties should still observe the notice period in full. As an alternative, the employer can pay, in lieu of the notice period, (at least) the equivalent of the remuneration the Managing Director would have been entitled to during the notice period. Payment of additional compensation may be required, depending on the circumstances. If no compensation is offered, the termination may be deemed manifestly unreasonable, in which case, the former Managing Director can claim (additional) financial compensation. If the Managing Director falls sick before he/she receives the invitation to the shareholders’ meeting, his/her dismissal during the shareholders’ meeting will only result in the termination of the corporate position. During sickness, the Managing Director, just as every other employee, is protected by a statutory prohibition to give notice. Consequently, the employment relationship does not end simultaneously with the termination of the corporate relationship. In that case, the employer will have to submit a written request for dissolution of the employment contract to the competent court. In the event that the company has established a Works Council and the Managing Director is the consultation partner of the Works Council (bestuurder, within the meaning of the Dutch Works Councils Act), the Works Council must be requested for its prior advice on the intended dismissal of the Managing Director before the decision to dismiss him/her is adopted and implemented. 128 Baker & McKenzie
14.4 Works Council Doing Business in the Netherlands 2012 Under the Dutch Works Councils Act, companies with 50 or more employees must establish a Works Council. Part-time employees and those who are hired in (or out), should also be counted in to determine the number of employees of the company. The members of the Works Council are chosen by the employees from their own ranks. The number of members varies from 3 to 25, depending on the total number of employees of the company. One of the members is appointed chairperson. A Managing Director may not be a member of the Works Council. The management of the company and the Works Council must meet at least twice a year, to discuss general subjects concerning the company. The management is obliged to provide the Works Council with relevant company data and documentation (such as the financial results and the legal structure of the company). Furthermore, the management must inform the Works Council about the results and the prospects of the company. The Works Council is also entitled to receive information on the scope and content of the terms and conditions of employment with respect to different groups of employees (including the general development of their remuneration) within the company. The Works Council must be requested to render its written advice on intended decisions (prior to their adoption), that – for example – relate to the transfer of control of the company, the termination of or a major change in the company’s activities, major investments, significant reorganizations, mergers, takeovers, changes in location or major workforce layoffs and dismissals. The Works Council must further be requested for its approval on intended decisions (prior to their adoption), that directly affect employment conditions, such as pension plans and all kinds of inhouse regulations (including regulations relating to working hours or Baker & McKenzie 129
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Editorial Contributions Robert van
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Innovative ways to inform you Doing
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1 The Netherlands Doing Business in
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Steady-Course Policy Doing Business
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2 Legal Forms of Doing Business Doi
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Tax Corporate & International Tax H
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