When Iranian process engineer Ali Shabani was offered a job in the Netherlands via a specialised employment agency a year ago, he relocated enthusiastically with his wife, wishing to broaden his career prospects in Europe.

After completing his first three months at work in the Netherlands, knoweldge migrant Shabani saw that he had a future in the Netherlands.

“I went back to Iran, rented out my house, sold the car and resigned from my job – I’d taken a three-month sabbatical to try out working abroad,” he says.

In January 2009, Shabani’s employer told him bluntly that they didn’t have enough projects for him to work on and referred him back to the agency. The agency informed him that no other company on their books had work for him either, and terminated his contract on the spot. He was informed that he could search for work for three months but wasn’t eligible for any payment.

Shabani applied to the CWI for social security and so far has received payment of half his salary for one month. April is his last legal month in the Netherlands and he is now in the final negotiations for a new job contract after strenuous job-hunting efforts.

His wife, a qualified medical doctor, who was learning Dutch on courses offered by Ali’s previous employer, may soon be able to continue her efforts to learn the language to the level necessary for her to practice her profession in the Netherlands.

“I thought that in the Netherlands, employment law was in favour of employees and didn’t realise that an agency could terminate your contract with two weeks notice and no support,” says Shabani.

And he is one of the lucky ones. By not signing any negotiated severance deal, he held onto the right to remain in the Netherlands for three months after loosing his job, as well as being eligible for a percentage of his salary from social security over the same period.

“One of my friends signed a termination letter after he had been informed that his redundancy was due to lack of available work in this climate of recession," says Shabani.

"However, it seems that the company had mentioned to the agency that he was usually late and lacked motivation. Evidently his agency, the employing company and the IND had communicated on the reason for his dismissal without his knowledge. The outcome was that he had to leave the country within 28 days rather than the standard three months."

Knowledge migrants: Don’t sign any terms of agreement

“Expats with knowledge migrant status should avoid signing any job termination agreement,” says immigration lawyer Ester de Vreede of De Vreede Advocaten BV, who has noticed that the majority of employers who wish to terminate contracts with their expat employees are negotiating terms of leaving with them. 

 “If this happens to a highly skilled migrant, they should know that they can contest the validity of the agreement when it appears that this agreement is disadvantageous for them,” says De Vreede.

“Employers can make it easier for their employees and avoid such a situation by going to the UWV Werk en Bedrijf (former Centre for Work and Income -- CWI ) or court and explain that they cannot afford to keep their employees on.

"If their explanation is sufficient, they are granted permission to terminate the contracts and offer the employees a fair  payment, dependent, for instance, on the length of service and salary as well as personal circumstances.  The employee also gains the right to search for another post over three months because they are legal.”

Expats aren't aware of their rights

Dutch employment lawyer Sanne van Ruitenbeek, who works at Pallas law in Amsterdam, says that since January 2009, several expats from different parts of the World (Europe, Asia and North America) have contacted her law firm to ask for help.  

“In their haste to terminate contracts with their expat employees, employers in the Netherlands sometimes even bypass the notice period or payment of a severance fee.  Expats often aren’t aware of their rights," says van Ruitenbeek.

The good news is that Dutch law is employee-protective.

"For instance, an employer is not allowed to fire an employee without the court or labour office’s permission. It is also very common in the Netherlands that a fired employee will be compensated for their loss of income and possible damages," says van Ruitenbeek.

Asking the right questions

However, in contrast to local employees, when expats get fired, they find themselves facing an array of  questions.

“They are left wondering about their residence status—if and when they have to leave the country, where to look for another job, if they are eligible for severance pay. They don’t know who should pay for their relocation costs, what to do about the rental contract of their home, their children’s school or their partner’s job.
“These aspects are important with the termination negotiations, in court cases concerning the termination of the employment and the granted severances,” says Van Ruitenbeek.

“Employers often fail to inform their employees about their rights and the consequences of the termination of the employment.”

In cases, for instance, where US law is declared applicable in the contract, Van Ruitenbeek says that this does not automatically mean that an employer is allowed to act in violation of Dutch employment law.

When does Dutch law apply?

“Some Dutch employment ground rules are applicable to all people who work in the Netherlands. And, if an employment or assignment lasts more than 5 years, most Dutch ‘protective’ employment law will automatically become applicable to the expat’s contract. It does not make any difference that the laws of another country are declared applicable in the contract. If no specific law is declared applicable in the contract, Dutch employment law could be fully applicable within one year of working in the Netherlands,” says Van Ruitenbeek.

“If an employer wants to fire you, we advise you to turn to a lawyer or other legal advisor who is specialised in Dutch and international employment law to find out what your rights are.

Do’s and don’ts

“Be aware that your employer should respect Dutch and international law even though your contract may state otherwise and that the regular Dutch severance calculations should be adjusted to your expat situation. Do not sign any termination agreement before obtaining advice from an expert and contact a lawyer as soon as your employer mentions that they intend to fire you.”

30 March 2009

Expatica/ Natasha Gunn

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Related event:

23 April 2009
Lecture: An Expat in Crisis
Leiden University and At Home in Holland have collaborated to organise a lecture highlighting the current changes in the employment situation for expats in the Netherlands.

To register for this free event, and for further information, please contact Ms Marjo Gallé, Leiden University Campus the Hague

Tel: 070- 3021076
Mobile: 06- 46755731
Mmgalle@campusdenhaag.nl
www.campusdenhaag.nl