Getting fired? Here is what you need to do to get a shit ton of money

Who this is for #

This guide is aimed at people who are at risk of losing their job due to alleged performance issues or a disturbed working relationship. It might still be useful for other cases (such as long-term sickness), but those bring additional complexity, so I will leave them out of focus here. It does not apply to cases that would be a ground for immediate dismissal (like fraud).

Disclaimer: This document deals with legal issues and is intended to provide an informational resource only. Tech Workers Coalition doesn't in any way provide legal advice, so don't rely on this document as though it would constitute legal advice.

HR invites you to a meeting #

So, you’ve been kicking ass in your role, but suddenly the walls close in and HR invites you to a meeting. In this meeting they either put you on a Performance Improvement Plan (PIP), or immediately tell you that they want you gone.

A word about PIP #

Let’s get PIP out of the way first. What you need to know is: even if you fail a PIP (and some people do survive PIPs), the company can’t fire you. They would still need to go to court, and a failed PIP is just a piece of evidence in such a court case. Out of all failed PIPs that end up in court, only 20% result in a judge granting the approval for the dismissal. So it is incredibly hard for the company to make a convincing PIP – it needs to be objective, measurable, demonstrate that you were given enough opportunity to improve your performance, etc.

If you are put on a PIP, cooperate with the company, but still highlight any things like unclear targets, unrealistic schedules, etc. The point is not to argue with the company, but have a paper trail for the court that you have voiced your concerns and they were ignored.

You’re offered a settlement #

But let’s say you have failed PIP or it was not even offered, and now you are in a room with HR and hear something like:

“We are sorry this is not working out. We have a very strong case to dismiss you, and while we could go to court, we have decided to show appreciation for all of your hard work over the years, so we are willing to offer you this amazing settlement of 2 months salaries if you quit yourself now”.

At this point the company wants you gone and you need to keep in mind that HR is paid for misleading you and taking advantage of you (every euro saved for the company is a euro that you are not getting). So you need to learn how to decipher HR-speak and understand what they are really saying. Luckily, it is super easy: you just reverse whatever they tell you and you get:

“We don’t care about you. We have no case to dismiss you and we don’t want to go to court, so here is the shittiest deal we could think of and we hope you take it”.

So … what do you do?

Why they offer you a settlement #

Now, and here is the key part, you need to understand why they are offering you a deal (vaststellingsovereenkomst). I mean, let’s imagine it’s a big company with a ton of lawyers. Surely they have gone to court hundreds of times before and have some kind of a repeatable internal process, right?

The truth is simple: going to court takes a shit ton of time and the company needs to have a really, really strong case to win it. I’ve talked about PIP already, and other options (like disturbed relationship) are even harder for the company to win: they’d have to show they have really tried all other options to fix the situation before trying to dismiss you (think 6 months of logs of various attempts to fix it). Bullshit restructuring like “we decided to restructure this department and want to fire only this one person” also won’t fly with the court or Uitvoeringsinstituut Werknemersverzekeringen (UWV).

So generally the company will have a very low chance to win if they want to fire you for a alleged performance issues or a disturbed working relationship. And even if they were to win eventually, the whole process would take a lot of time – that’s why you are being offered a deal.

Time is (literally) money #

Let’s talk about time before we finally jump back into our conversation with HR. Your worst case scenario (you lose in court) timelines are:

• PIP, if they offer it (2 months min, 6 months for a proper one)
• going to court (3-4 months)
• your notice period (usually it is 1 calendar month, so anywhere between 1-2 months).

So if you do nothing and lose in court, you have like a 6 months paid buffer already, without taking any deals. You really need to understand and internalize this knowledge, because it will be a foundation for our negotiation strategy.

Back to our HR convo. Thank them for their offer. Say that you also would like to skip the court stuff and arrive at a fair settlement. Ask for some time to review it. Don’t sign anything until you have a settlement that you are 100% happy with. If you get pressured into signing a bad deal, you still have 14 days to change your mind (wettelijke bedenktijd).

At this point nobody wants you in the company, so you will be likely put on a garden leave. Now you are in the perfect position: they want you gone as soon as possible, and you are getting paid and doing nothing.

Who needs a strategy? Just ask for money! #

Take a week or two to ’think’ about their offer. You are allowed to take ‘reasonable’ time and they can’t pressure you with stuff like “you have to reply by X date or we take the offer away” (well, technically they could, but this won’t fly in court).

After the two weeks, come back with a crazy counter-offer: ask for the stars, like 18 months salary + extra stock + extra pension + whatever you can think of. They came to you with the shittiest offer, you need to counter with the best one.

They will reply with something like “you can’t seriously think we will accept this offer”, tell them you won’t accept theirs and propose them to counter. Once they counter, take another week or two to think about it, rinse and repeat – you just bought yourself a month or two of free salary.

At some point you will probably hit a perceived wall, likely around 4-6 months of salary, although it really depends on the company. 4-6 months of salary is not a bad deal, taking your expected timelines into account, so if you are happy with this number and want to save some effort, you should take it.

However, if you are up for the fight, now is the time to put up the pressure.

Bringing the fight back to them #

You see, all these months that you were negotiating, you were on garden leave. And while you know that your employment contract creates an obligation for you to perform work, you might not be aware that under Dutch laws it also gives you the right to perform your job (see: example court case that confirms this). Your employment contract gives you the right to work, so it is time to start repeatedly asking to return to work.

That ship has already sailed and everyone has moved on, so the company really will not want to do it. Keep asking, your messaging should be “either take my settlement offer or let me return to my work”. This is a risky strategy, because the company might retaliate: for example, if you were working hybrid, they might ask you to come to the office 5 days a week.

You need to remain polite, collaborative and keep in mind that everything might end up in court one day. So you can’t say “eat shit, I won’t do it” but you can (and should!) ask for an explanation or the grounds for their decisions – you will get bullshit answers and that is actually very good for you if you go to court.

In the meantime, you will have to comply and find creative ways to make them feel your continued presence in the process without breaking any rules. For example, you could start going to office every day and sharing all the details about your situation and HR conversations with everyone in the office, stuff like that.

It might seem that the company has all the power in this situation, but there is a lot you can do without breaking any rules or procedures.

Back to the negotiation table #

Provided that you complied and have a good paper trail of the company’s bullshit, you can now play your cards straight: “Guys, we can continue this circus and go to court. It will take another 6 months and now with all the extra evidence I have, I’m sure I will win the case. I am up for it, but I’d rather we arrive at settlement agreement that fairly reflects this situation.” Now it’s up to you to lock in the final number. Somebody who is absolutely not me once got 11 months, and I’ve heard higher numbers.

If you are in the Netherlands on a visa, you need to ask to make this a period of garden leave with a condition that if you find a job sooner, the company will pay you the remaining amount in cash. Do check the conditions of your visa: if being in active employment is a condition on your working visa, you might need to leave the country within a certain number of days. If you aren’t on a visa, ask for the cash and terminate the employment as soon as possible, so you can apply for unemployment benefits (WW-uitkering) if you need them.

Also make sure some lawyer costs are included in the agreement, and once you have the final version you are happy with, take it to a lawyer for a legal check before signing anything.

Some random advice #

• About lawyers: I went to one and they offered to negotiate on my behalf for 3-4 months’ of salary for the cost of a tiny €10K retainer. I’ve politely declined and negotiated myself, then paid a different lawyer to check the final agreement. They did not discover anything interesting, but it was good for the peace of mind.
• Legal insurance: Legal insurance sucks, I won’t recommend it: they are super slow to answer (think 1-2 replies a week), constantly looking for bullshit reasons to deny the claim and are in general quite useless. Maybe I was unlucky with mine (ARAG), but both lawyers told me “there is no good legal insurance in the Netherlands”.
• Fired after following company procedures: If you have followed some internal company procedures or guidelines that resulted in you getting fired (for example, you filed an HR complaint against a colleague and the company decided to let you go), you are golden: I’ve talked with an actual judge who deals with employment disputes, and they told me that no judge in the NL will allow to punish an employee for following the company’s policies or procedures.
• Whistleblowing: This one is a bit out there, but I highly recommend reading through the Dutch Whistleblower Protection Act (Wet bescherming klokkenluiders). The amount of protection it creates for you as a whistleblower (even if it turns out you were wrong!) is just crazy.
• Language: Be mindful of the language, both yours and the company’s. Assume everything will be read by a judge. Also assume that HR will use the language against you: a common example will be telling you to do something with wording like “We would prefer if you would bla-bla-bla”. Don’t hesitate to ask them to clarify: “Am I legally required to do it, or is it just your preference?”.
• Mediation: The company might call in a mediator. Kinda like a couples therapy, only nobody wants to do it, and it is completely useless. Sometimes used as a scare tactic by companies, don’t be afraid of them - totally harmless and useless peeps.

Do you have any questions? Feel free to get in touch!