Back to Work After Summary Dismissal?
Every HR professional in the Netherlands knows that a legally valid summary dismissal is subject to very strict requirements under Dutch law. However, within an organization, there is sometimes the idea that, even if it is not clear that all requirements are met, it is a good idea to proceed with the summary dismissal anyway. The idea is probably that, in any case, the employment relationship ends because the relationships become unworkable due to the dismissal. Unfortunately, the legal reality is different, as recently ruled by the subdistrict court in Gouda. In this case, the following was at issue.
Situation
The employee in question had been employed since early 2022 and had reported sick on January 18, 2024, after problems with his manager. The company doctor concluded on March 7, 2024, that the illness was due to work-related problems but that there were no medical limitations. The company doctor advised a two-week time out to start conversation to improve the working relationship. Based on this advice, the employee was asked to come to work on March 18, 2024, to continue talks with the manager and resume work. The employee refused to resume work, upon which the employer immediately suspended the salary.
On March 19, 2024, the employee resumed work but according to the employer, the employee behaved unacceptably again. For that reason, the employee received a warning on March 21, 2024, which – as seems to follow from the court ruling - stated that immediate dismissal would follow if the employee again did not follow the employer's instructions.
On March 21, 2024, the mediation process between the employee and the manager began. On March 22, 2024, the employee was at work but did not answer phone calls or Teams invitations from their manager. For the employer, this was the breaking point, and immediate dismissal was given to the employee due to, among other things, the situation since the sickness report and not responding to phone calls/Teams invitations. “Thus, you stubbornly refuse to comply with reasonable commands or instructions [...] Additionally, you undermine the authority of your manager and the work atmosphere within the company is thereby frustrated,” the employer wrote as grounds for the immediate dismissal to the employee.
Court ruling: no reason for dismissal. Because the employer apparently doubted whether the dismissal would hold, a request for termination was filed, namely for the situation where the immediate dismissal would not hold. As a counterclaim, the employee demanded restoration of the employment contract and payment of the salary.
The subdistrict court quickly dismissed the immediate dismissal. In the ruling, the judge considered: “Given the advice of the company doctor and the mediation process started by the parties, it was incumbent upon the employer to first continue the mediation process before immediately issuing an official warning and eventually the immediate dismissal four days later. Only in very exceptional situations is it justified to prematurely terminate the mediation process. In the opinion of the subdistrict court, there is no such exceptional situation here. The mediation process was intended to improve the relationships between the employee and particularly their manager and to create a safe working environment for everyone at the employer. By proceeding to issue an official warning shortly followed by immediate dismissal, the employer has fallen short of its duty towards the employee.”
The employer had asked the judge, in case the immediate dismissal did not hold, to terminate the employment contract on the grounds of a disturbed relationship, or (serious) misconduct, or a combination of those two grounds. The subdistrict court also rejected the termination: the employer should have completed the mediation process. By not giving that process a chance, it has not been demonstrated that there is a sustainably disturbed relationship, according to the judge. There has been no (serious) misconduct by the employee justifying dismissal, and the combination of both grounds also cannot lead to dismissal, the judge ruled.
The employer was ordered to restore the employment contract and pay the salary (with statutory interest and increase): the employer had to “simply” continue the working relation with this employee.
Take away
This ruling clearly shows that a “strategic” immediate dismissal does not necessarily produce the often desired result of a departing employee. Do you want to discuss a (similar) issue and the steps you need to take as an employer to achieve your goal? Feel free to contact our firm!
