On January 18, 2024, the Court of Appeal in 's-Hertogenbosch ruled on the wrongful termination of the employment contract as a result of the employer's seriously culpable conduct. Unfortunately, we still see these kinds of situations too often and the employer is presented with the bill.
The case concerns the request of a construction company to terminate the employment contract with the Head of Administration and Finance bydue to a disturbed working relationship. The employee is also a member of the management team. The employer believes that the employee is guilty of unauthorized absence. He wrongly took seven (7) days of leave and then made changes to his Outlook calendar to cover this up, according to the employer. Also in view of his position, the employee has an exemplary function in which he has acted reprehensibly towards other employees.
The first 3 unregistered days of leave took place in January. Then in February, April and May. The employee has indicated that the days of leave in January were approved by a colleague in the management team to compensate for his overtime in December. The colleague disputes that he made that promise. In April, the employee was explicitly addressed by the same colleague about his absence and the questions that his absence raised among colleagues. The colleague also stated that he had kept track of the employee's absence since January and that this had been communicated to the employer. Despite this knowledge, no inquiry was made into the reason for the employee's absence prior to the appraisal interview that took place on 18 July 2022. There was therefore no hearing.
In a letter dated 25 July 2022 from the employee, he stated that he had not felt socially safe in the workplace for some time and felt passed over. According to the employee, there was a lack of equality and unity within the management team and a lack of respect. The following day, the employer announced that they wished to terminate the employment contract with the employee.
The subdistrict court rejected the request to terminate the employment contract. The employer appealed, arguing that the subdistrict court wrongly rejected the request to terminate the employment contract and requested the Court to terminate the contract as soon as possible.
The Court ruled that the accusation that the employee was careless with the leave or home working days is insufficient to conclude that there was such culpable conduct and that it constitutes grounds for terminating the employment contract.
The claim in which the employer states that there has been a breach of trust and such a disturbed working relationship that termination of the employment contract is justified, is successful. The Court ruled that the working relationship has been permanently and seriously disturbed. According to the Court, however, this disturbed working relationship is due to the seriously reprehensible conduct of the employer.
The Court holds it against the employer that, following the letter of 25 July 2022, there was no reason for the employer to have an open discussion about the substantive issues raised by the employee and that were important to him. The employer immediately closed the door without any serious hearing. This blocked any possibility of restoring the disturbed employment relationship, according to the Court.
In light of the foregoing, the Court weighed the seriousness of the employer's culpable conduct against other factors such as the duration of the employment relationship and the financial situation of the parties involved, with the outcome that the employer must pay the employee Euro 75,000 by way of fair compensation.
This ruling again emphasises the importance of employers acting carefully in the event of dismissal.
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The source of the Court's judgment is:
About the authors
Didi Wildeman
