We are in constant dialogue with employers and our advice is always that summary dismissal is the ultimate disciplinary measure. In other words: if the employer can impose a less drastic measure, he would be wise to go for it.
In this case, my colleague Didi Wildeman and I represented the employee who was summarily dismissed in February 2022 for installing Windows 11 on his work laptop. According to the employer, installing Windows 11 would entail major risks for the employer's entire network. However, the employer was unable to substantiate its position sufficiently. The employer had formatted the laptop, making the login details untraceable.
Not only the reason for the dismissal but also the way in which the employer treated the employee cost the employer dearly. The employee was suspended for a so-called internal investigation after the employer discovered that the employee had installed Windows 11. The results of the investigation were not made known to the employee and therefore there was no hearing.
Suddenly, the employee was suspended again by the employer and had to decide within one day on a proposal to terminate the employment contract by mutual consent. He was not given time to have a lawyer look at the proposal. After the one-day period, the employer withdrew the proposal and dismissed the employee with immediate effect (again) on the spot. The employer had also drawn up a final settlement and offset the salaries paid up to March 2022 against it. This immediately put the employee in financial difficulties.
The Court ruled that the summary dismissal should not have been given, with the result that the employer owes the client the full salary plus default interest of 50% with retroactive effect from February 2022.
The employment contract did end due to a disturbed working relationship. Because the disturbed working relationship was attributable to the employer, the employee was awarded a termination payment of gross NAf 125,000 on top of the wage claim.
If the employer had sought legal advice earlier, the outcome could have been very different.
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