Recently, the Supreme Court reiterated what the applicable standard is in assessing whether there is an urgent reason for a standing dismissal. The case presented to the Dutch Supreme Court is highly illustrative. The punch line is in the tail of the verdict.
Background: starting points and facts
An incapacitated employee requested four weeks of leave from his employer in June 2018 for the period from August 6 to August 30, 2018. This was denied. The employee was granted two weeks of leave, for the period August 6 through August 19, 2018. On Monday, August 20, 2018, the employee was not at his home address. This was noted by the operations manager and HR advisor. The employer sent a letter to the employee that same day, instructing him to return home as soon as possible, announcing the suspension of continued pay should the employee again fail to attend without good cause. On August 21, 2018, the employee informs the employer by email that he became ill on August 16, 2018 "due to eating" and was not allowed to travel for 20 days. The employer then requests a doctor's note and also indicates that it is using the option to suspend pay. On August 23, 2018, the employee submitted the doctor's statement as well as a photo of a ticket/reservation confirmation of a flight to the Netherlands. The Occupational Health Physician to whom the doctor's statement was submitted informed that the expected duration of the complaints/restrictions was disproportionate to the diagnosis made.
Meanwhile, the employer found out that the details of the flight ticket or booking confirmation submitted were incorrect. There was an incorrect flight number listed, the flight was supposed to take place on Wednesday, August 18, 2018 but it turned out to be a Saturday, the flight times were incorrect, and there were no links to flight numbers, flight times and airliners that did exist. In an e-mail on August 24, 2018 to the employee, the employer listed these observations.
By letter dated August 27, 2018, the employee was immediately dismissed. The reasons for the standing dismissal were: (i) violation of the reintegration obligations by not being present on August 20, 2018, (ii) unauthorized absence by staying in Morocco longer than allowed, (iii) failure to report sick on or about August 16, 2018, (iv) that the doctor's certificate did not provide evidence or substantiation for the prolonged absence, (vi) that the employee failed to show that he did intend to travel back before August 20, 2018, and (vii) that he provided a photograph purportedly confirming a flight back home on August 18, 2018, when verification showed that this flight did not exist. The employer states that this has damaged trust in the employee to such an extent that continued employment cannot be expected. In conclusion, the employer argues that the above acts, characteristics and/or behaviors, both in themselves and taken together, constitute an urgent reason for standing dismissal.
The legal framework, urgent reason for standing dismissal
Pursuant to article 7:678 paragraph 1 of the Dutch Civil Code, for the employer, urgent reasons for immediate termination of the employment contract (standing dismissal) are considered to be such acts, characteristics or conduct of an employee, which have the consequence that the employer cannot reasonably be expected to continue the employment contract. According to established case law of the Supreme Court, when assessing whether such an urgent reason exists, the circumstances of the case must be taken into account in their mutual relationship and coherence.
First and foremost, the nature and seriousness of what the employer considers to be an urgent reason must be taken into consideration, as well as, among other things, the nature of the employment relationship, its duration and the manner in which the employee has fulfilled that employment relationship, as well as the employee's personal circumstances, such as his age and the consequences that instant dismissal would have for him.
The punch line is in the tail of the verdict
The employee in question, of course, protested the standing dismissal, but found no response at both the subdistrict court and on appeal to the court of appeals. In particular, the court charged the employee with having failed to return from vacation on time and having provided incorrect information about it. According to the court of appeal, this should be seen in the context, also reflected in the letter of dismissal, that the employer had to repeatedly ask the employee for an explanation and that the employee's responses raised new doubts to the point where he finally failed to respond. It also had to be clear to the employee that by his conduct he seriously damaged the employer's trust in him. Balancing the nature and seriousness of this urgent reason against personal circumstances put forward by the employee, the ruling was that summary dismissal was justified.
As always, the punch line is in the tail of the verdict. The Dutch Supreme Court ruled that in its decision, the court of appeals ignored the employee's contention that the employer should not have refused the request for leave and left open whether this was the case. Thus, the court of appeals failed to recognize that the answer to the question of whether the employer should have been allowed to refuse the leave is relevant to assessing the nature and severity of the employee's absence on August 20, 2018, and failed to consider this circumstance in determining whether an urgent cause existed.
Thus, the court of appeals was not entitled to leave open whether or not the employer was justified in refusing to agree to the employee's four-week vacation request. After all, the Dutch Supreme Court - like the Advocate General - considers this to be a circumstance relevant to assessing the seriousness of the conduct attributed to the employee. More specifically, if the employer should not have refused the requested four weeks of leave by granting only two weeks of leave, it may mean that there was an unreasonable order by the employer. That may cast a different light on the employee's culpability, the Advocate General said.
So the Dutch Supreme Court rules accordingly. What follows is an annulment of the judgment of the court of appeals and a referral of the case back to another court for further consideration and decision. With the homework to assess whether the employer could reasonably have limited the requested leave of four weeks to two weeks.
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