Legal dispute: meaning of 'due course'

Hi guys,

I need some advice reg. the following sentence:

"Either party may terminate this employment as of the end of a month, by giving two months prior notice in writing. In case of a termination of this employment agreement without a due course by the Employer the Employee shall be entitled to a severance pay based on the Dutch Cantonal formula".

How do you (legally) interpret the words 'due course' here? My Swiss layer is not 100% sure, due to the English language. All other I understand except for the 'due course'.

Hopefully somebody can help me.

Reg. Ewis

Due course would imply "according to this contract", so I think this is just saying that if the employer terminates the contract without the two months notice they must pay the severance package.

If "due cause" is defined in the contract, I'd guess it should be "without a due cause".

It's *course", not "cause".

In which case, it doesn't make any sense. Is it an English translation from a Dutch document? "Due cause" makes better sense.

As to that, are you working in Switzerland for a Dutch company? Otherwise I don't follow the reference to "Dutch Cantonal Formula".

has this been google translated?

"course" makes zero sense. Actually none of this makes any sense. And what the heck is the "Dutch cantonal formula"?

a) it's not "due course" but simply "cause".

b) the Netherlands isn't Switzerland

c) there is no "cantonal formula" for severance payments anywhere as terminations here don't have to have cause

Agree that it does not appear sensical as written - "a due course" has no obvious meaning.

If something happens "in due course", this means happening after an expected amount of time. e.g. "In due course, you will receive payments according to the schedule described in ..."

And "a due cause" is a valid reason for something. This would fit very naturally into the rest of the sentence as written. I think that the most likely explanation, given the context we have, is that somebody mistyped "cause" as "course".

Basically if the OP steals money or gives out company secrets they can sack him without any severance pay & probably no notice.

The Dutch cantonal formula sets the amount of money that has to be paid to an employee if he/she gets fired and is due to circumstances entitled to a "golden handshake"

A * B * C = amount of money.

A - Stands for the amount of full years worked. Years worked on age unto 35 count for 0.5, years 35 up to 45 count as 1, years 45 up to 55 count as 1,5 and years on 55 or higher count as 2

B - Stands for current monthly payment including all steady extra's like holiday money, extra's for shifts, bonuses etc.

C - is by default 1 but can be set to 0.5 when the employee is partly responsible, to 0 is the employee is fully responsible, to 1,5 if the employer is at some more fault and to 2 if the employer is extremely at fault

So let's say an employee gets fired due to being ill for to long and the employer has legally not done enough to reintegrate the employee during his illness, so getting fired is not legally justified. An employee can go to court and demand his job back, but when this is not possible he would get money due to the ABC formula.

Example:

Employee has worked full years from age 40 to 60 at the company and gets fired without proper reason.

A*B*C

A = 5*1+15*1.5+6*2 = 39.5

B = let's say monthly income is 4.000,-

C = 1

Giving 158.000,-

Now the employee was ill and employer acted against him, treated him wrong, broke the rules on integration etc.. That would put C at 2 giving the employer 316.000,- and if the employee himself did not do enough to integrate but still there was no ground to dismantle the contract than C gets set to 0.5 giving the employee 78.000,-

Hope this explains it properly.

This formula even tho used widely in the Netherlands has never been an official instrument but more an unofficial guideline to make court cases rule in line with each other and has been replaced by new official rulings in 2015.

According to which country's law is this contract?

Due cause (since Due course makes no sense at all) in Switzerland is almost meaningless since there are much more valid grounds to get rid of somebody when compared to the Netherlands where employee protection is completely insane.

I would understand it simply as 'if either party terminated the contract outside the specified schedule /eg, Employer says 'don't come in to work today, you're fired, or the Employee says, i don't like it here, i shall leave this place in one week, but the Contract specifies two months' notice/. Legal language quite often makes no sense and can sound improbable to non-legal people. I often raise my eyebrows and swear when reading legal docs - I translate them from time to time...

Due course - an agreed process, sequence of actions that should be followed, whether prescribed by a contract or as a conventional way of doing things given all parties accept it as a norm.

Without a due cause so a normal termination not a termination when the employee has done something very wrong.

But what employer would ever sign a contract which would state: "Hey If I ever fire you since we are out of work for you we are going to give you some extra months of payment"

I suppose that depends on the laws of the country of the contract. In some countries, it might be law to pay those extra months, especially if there were no fault on the side of the employee. That is not, however, the case in Switzelrand.

True, but it was a typical Dutch thing, and even the Dutch stopped with that some years ago. Also it never was intended to be used in contracts directly, but as a guideline on solving disputes that went to court.

Seeing it in a Dutch contract would amaze be already, seeing it in a Swiss contract would amaze me even more.

Thanks everybody for all your replies! This is much appreciated. To clarify a bit:

- The company is based in Switzerland; Swiss law is valid. The company moved several years ago from NL to CH. Therefore the Dutch cantonal formula is inside the contract.

- The sentence is literally written like that in my contract (when signing, unfortunately I did not check the termination section in detail..).

All in all, it seems that this sentence in my contract is a very strange one and that can be interpreted in various ways.. So the question remains:

- Will be there a severance payment according to the Dutch Cantonal formula? --> i.e. they have no due cause?

- Or will there be no severance payment --> i.e. the followed a due course?

Ask your employer's HR. Plus, have the contract corrected.

My HR department says there is no severance payment. And I say there is. Therefore the legal dispute

Actually, due to the poor translation, that phrase is meaningless within the context of the contract . I would therefore argue it is not binding.