Your employer has not paid salary for months, but your contract still exists. You are stuck in a dormant employment contract. Since the Xella ruling, that no longer has to be the case.
A dormant employment contract arises when your employer stops paying salary after 104 weeks of illness, but does not terminate the employment. Formally you are still employed, but no salary is paid and there is no work. You are in a no man's land: no dismissal, no compensation, no perspective.
For years, employers deliberately kept the contract dormant to avoid paying the transition payment. That changed on 8 November 2019 with the Xella ruling of the Supreme Court. Since then, the employer is in principle obligated to cooperate in termination with payment of the transition payment.
Step 1 — Calculate the transition payment: the formula is 1/3 gross monthly salary per year of service. Use the salary from before the illness as the starting point, including holiday pay, thirteenth month and structural allowances. At 12 years of service and €3,000 gross per month, that is approximately €12,000 gross.
Step 2 — Send a written proposal: write a letter to your employer requesting termination of the dormant employment contract with payment of the transition payment. Refer to the Xella ruling (Supreme Court 8 November 2019, ECLI:NL:HR:2019:1734). Set an end date and a response period of two weeks.
Step 3 — Wait for response: if the employer agrees, you make arrangements about the end date and payment. If the employer does not respond or refuses, send a reminder with a new deadline and the notice that you are considering legal steps.
Step 4 — Subdistrict court: if the employer does not respond or refuses without justified interest, you can go to the subdistrict court. You then request dissolution of the employment contract with an order to pay the transition payment. In most cases, the court follows the Xella line.
Step 5 — Compensation scheme: after paying the transition payment, the employer can apply for compensation from UWV (art. 7:673e Dutch Civil Code). That is their administrative matter — it does not affect your right to the payment.
Many employers simply ignore the request. They hope you will give up. Send a reminder and set a clear deadline. If the employer still does not respond, engage legal assistance.
Some employers claim there is still a prospect of return to work. In practice, this rarely holds up if you have been fully incapacitated for years and receive WIA benefits. Ask the employer to substantiate this in writing.
The employer offers a lower payment than you are entitled to. Check whether all salary components have been included and whether the years of service are correct. The compensation scheme caps at the amount at 104 weeks — but that is the maximum of the compensation, not of your entitlement.
A verbal request is legally insufficient. Always send a written proposal by registered letter or email with read confirmation. You must be able to prove afterwards that you made the request and when.
Yes. Under the Xella ruling, the employer is obligated to cooperate as a good employer. If they refuse without a justified interest, you can go to the subdistrict court. The court will generally order termination with payment of the transition payment.
Yes. Through the compensation scheme (art. 7:673e Dutch Civil Code), the employer can reclaim the transition payment from UWV, up to the amount that was due at 104 weeks. The application must be filed within 6 months of payment. In practice, UWV reimburses the full amount if the conditions are met.
No. The transition payment is not offset against your WIA benefit. It is a one-time compensation for loss of employment, separate from the income provision that WIA provides.
The transition payment is calculated over the full duration of the employment — including the period after 104 weeks. If your contract has been running for 15 years while 104 weeks was reached 3 years ago, the payment is calculated over 15 years. The employer compensation from UWV is capped at the 104-week amount; the employer pays the difference out of pocket.
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