Your employee has decided to resign: what now?

If one of your employees takes on a new job, he or she must take into account the notice and cancellation conditions under the contract. As an employer, you, too, have to fulfill certain obligations.

Notice and cancellation conditions

The notice

The employee may cancel his or her contract with you in one of three ways:

1. A written document that you sign as an acknowledgement of receipt : the notice period starts on the first Monday following receipt.

2. A registered letter : the notice period starts on the 3rd working day following the dispatch date.

3. A bailiff's writ : the notice period starts immediately.

Clearly stating the start date and the duration of the notice period is paramount in a letter of resignation. If the employee fails to comply with these rules, the notice and not the dismissal will be null and void. This means that even though he or she will resign, no notice period has been given. What's more, your employee will have to pay you compensation.

Dismissal before the start of the contract

Your future employee may change his or her mind in the time between signing the employment contract and the scheduled first day at work, as a result of getting a better offer, for instance.

In that case, there are 3 possibilities:

• a termination by mutual agreement, 
• your employee pays you cancellation compensation equivalent to 1 week's gross salary,
• your employee works for a notice period of 1 week.

The notice period

The method used to calculate the duration of the notice period depends on the starting date of the employment contract. If it is after 1 January 2014, the new terms apply. In summary: in this case, the term is half the period that would apply if you dismissed the employee.

If you already had an employment contract with your employee before 1 January 2014, then a two-part transitional arrangement applies. On the one hand the accrued seniority up to and including 31 December 2013, on the other hand the seniority after 1 January 2014 according to the above rules. The sum of both parts is the actual notice period.

Job search leave

During the notice period, your employee has the right to be absent if he or she is applying for a job elsewhere. A part-time employee is also entitled to this job search leave, in proportion to his or her working hours.

Two possible cases:

• Your employee benefits from outplacement assistance: he or she may be absent for 1 day (or 2 half days) a week during the entire notice period. 

• Your employee does not have outplacement assistance: during the last 26 weeks he or she may be absent for 1 day (or 2 half days) a week. Before the last 26 weeks is that half a day per week.

Compensation for breach of contract

If your employee wants to leave your organisation immediately (and does not want to comply with the notice period), he or she must pay compensation for the remaining time. The amount is calculated on the basis of the current monthly salary, including the single and double holiday pay, the end-of-year bonus and all other benefits (such as meal vouchers, a company car or eco-vouchers). Moreover, as an employer, you are entitled to the gross salary amount because your employee should not deduct any withholding tax or social security contributions.

Contract of fixed duration or for a clearly defined work

If your employee terminates the contract without good cause, he or she must pay you compensation. This amount corresponds in principle to the salary that you would have to pay up to the normal end date of the contract, but can never be more than twice the notice period that would apply for an open-ended contract.

Obligations

Vacation days

If your employee has not used all his or her vacation days, you must pay them at the end of the notice period. The number of vacation days to which he or she would be entitled the next year also needs to be counted.

Payroll documents 

You are obliged to give the following documents to your employee at the end of the notice period:

• an employment certificate (with the contract start and end date and a description of the work performed)
• the tax form
• the individual account of the last payments
• the holiday certificate (only for white-collar workers)
• an unemployment certificate (form C4)

Conclusion

If one of your employees decides to leave your company, you can do very little about it. As long as he or she hands in his or her notice correctly and abides by the cancellation conditions, you will eventually go your separate ways. Keep in mind that you still have to pay the vacation days and provide your employee with a number of payroll documents.