Drunk employee did not act intentionally
On 28 December 2020, the employee joined the employer, a legal advisory firm, as legal counsel. She was part of the management team, and several conversations had already taken place about a possible partnership for her.
On 4 March 2022, the employee was working with a colleague at a client’s premises. That afternoon, they joined the Friday afternoon drinks, where a fair amount of alcohol was consumed. After sending several drunken WhatsApp messages to her boyfriend, the employee was picked up by him at around 1am. Her colleague went into town after the drinks and left her designer bag, containing her work laptop, at the client’s office. The next day, the employee messaged several people via WhatsApp, telling them she had been “black-out drunk” the night before.
On Monday morning, 7 March 2022, the colleague’s designer bag turned out to be missing from the office where she had left it. The employer requested the CCTV footage, which showed the employee taking the bag after the Friday drinks. On 8 March 2022, the employee was summarily dismissed.
Neither the designer bag nor the work laptop was ever recovered. In early April, the colleague filed a police report against the employee.
The subdistrict court ruled that the dismissal letter was based on theft by the employee. To establish theft, there must be intent to take someone else’s property – in other words, deliberate intent must be present. The employee argued this was not the case, since she could not remember taking the bag.
The CCTV footage clearly showed the employee taking the bag. She got into her boyfriend’s car with the designer bag, and the footage also showed her stumbling twice. Based on this footage, combined with the WhatsApp messages, the subdistrict court found it sufficiently established that the employee was so drunk that she was no longer aware of her actions. Her boyfriend was also able to describe in detail how poor a state she was in that night. It could therefore not be established that she had intentionally taken her colleague’s bag.
Moreover, the footage did not show the employee actually picking up the bag from inside the office. It could therefore not be ruled out that someone had asked her to take her colleague’s bag along. Nor did the footage show her making any effort to keep the bag hidden from those around her.
The subdistrict court ruled that this was a clumsy, drunken mishap. The employee could be held responsible for taking and losing the bag, as well as for her severe state of intoxication. Her personal circumstances and the consequences of dismissal for her did not, however, amount to urgent cause.
Summary dismissal is a measure of last resort. According to the subdistrict court, a lesser measure would also have sufficed here, such as a conversation, a warning, or dissolution proceedings. It was also relevant that the employee had, at an early stage, offered to compensate the damage.
The employee is entitled to fair compensation of EUR 10,000, having been wrongly summarily dismissed.
For the full ruling, click here (in Dutch).
Questions about the above?
Please contact one of Sørensen Advocaten’s employment lawyers. Call: +31 (0)10-2492444
