This is often the subject of discussion between cleaning contractor and employee (or his lawyer) in the event of dismissal. If the transition compensation is not calculated correctly, this can have major financial consequences. Something you can't use in these economically difficult times. In this blog, we explain what the situation is, so you will not be faced with unexpectedly high costs.
When do you have to pay transitional compensation?
You have to pay a transition fee if you, as an employer, take the initiative to terminate the employment. This is the case, for example, in the event of dismissal due to business economic circumstances (reduction of work), after long-term illness or dysfunction. If you terminate the employment contract via a settlement agreement, the formula of the transition compensation is often the starting point for calculating the agreed severance pay. By the way, even if you do not extend a temporary contract, you will have to pay the transition compensation at the final settlement. Since 1 January 2020, a new formula for calculating the transition compensation also applies, namely 1/3e monthly salary per year of service worked.
On how many years of service do you have to settle?
To calculate years of service, you look at the start date of employment. This is basically the date of employment on the pay slip or the date as shown in the payroll records.
But beware, if you have taken over the cleaning employee after the change of contract (under article 38 of the CLA), you are sometimes considered a “successor employer”. In that case, not only the years of service with your company count towards the transition allowance, but also the years of service with the previous employer. This is an unpleasant side effect of the change of contract.
Many employers and employees are not aware of this and simply assume the date of the change of contract when calculating the transitional compensation. However, if the employee seeks help from a lawyer or the trade union, he or she may claim a higher severance pay. This can add up nicely, especially if the employee has only just started working for your company, but previously worked for years at the previous cleaning company.
Do years of service with the previous employer count?
So when do you qualify as a successor employer and therefore the years of service from the previous cleaning company count? This always depends on the circumstances, but in general the following applies:
- Transfer of business?
You are a successor employer if there is a transfer of undertaking. As a guideline, you can consider that there is a transfer of undertaking if you have taken over 50% of the staff at the object + the object management from the previous cleaning company. In that case, you should count the years of service at the previous cleaning company towards the transition allowance.
Have you taken on a smaller proportion of employees at the property? Then whether you are a successor employer or not depends on the date of contract change.
- Change of contract (after 1 July 2015)
Did your employee join you after 1 July 2015? If you place the employee in a similar position then you are almost always a successor employer. You must then count the years of service with the previous employer when calculating the transition compensation.
- Change of contract (before 1 July 2015)
Did your employee join you before 1 July 2015? Back then, the old law still applied with an additional condition for successive employership. Back then, you were only a successive employer if certain links existed between your company and the previous cleaning company, which could have given you insight into the employee's performance. This depends on the circumstances. In any case, you could be considered a successor employer if your company and the previous company were affiliated or if you had consultations about this employee's background. If this is not the case, you do not have to count the years of service with the previous employer for the purposes of the transitional compensation.
