The employee had worked as a movement-studies lecturer at the university of applied sciences since 1989. The subdistrict court dissolved the employment contract for culpable conduct, ruling that the employee had no right to the transition payment because his conduct was seriously culpable. The Court of Appeal upheld the dissolution, but ordered the university to pay the transition payment anyway, ruling that the employee’s conduct was not seriously culpable. In its referral ruling, the Supreme Court held that the Court of Appeal had not sufficiently (or comprehensibly) explained that latter decision. Following the Supreme Court’s ruling, the following was established: (1) during a class in 2017, the employee placed his hand on, or tapped, complainant 1’s buttocks and said he had wanted to do so for some time, and (2) during a massage class, he used complainant 2 as a demonstration model to show students how to massage the body, including the buttocks, chest (muscles) and legs up to and including the groin. He used complainant 2 as a model on two occasions. It was also established that, in relation to both incidents, the employee’s conduct or omissions were culpable. He had been warned in 2006 and 2010 that there were signals his physical posture corrections during movement classes were causing confusion, particularly among female students. In 2006, he was instructed to look into what didactic or methodological changes could be made to his teaching method. In 2010, he was prohibited from any form of physical contact during movement classes.
Following referral, the Court of Appeal ruled that, although the university had given the employee two clear and unambiguous warnings and had demanded a change in his teaching methods, it had failed to provide him with adequate guidance in making that change – including observing his classes to check whether the change was actually happening. As a result, the university not only had insufficient oversight, but also left the employee uncertain as to whether the changes he had made were sufficient, and whether he was in fact performing well didactically. In those circumstances, the employee could reasonably believe that this was the case. This did not, in itself, remove the culpability of his 2017 conduct, but was a relevant circumstance in assessing the severity of that culpability within the employment relationship between the university as employer and the lecturer as employee. The massage itself did breach the 2010 prohibition on physical contact, but the university knew the employee continued giving massage classes regardless. This served a didactic purpose within his field, which involved testing certain boundaries. It required the utmost sensitivity on the employee’s part to prevent this physical contact from tipping into contact experienced by students as inappropriate. He had struggled with this, but apparently had not always managed to safeguard that delicate line. This does not automatically mean his conduct was seriously culpable. Considering the circumstances of the case together, the Court of Appeal ruled that the high threshold for applying the exception in Section 7:673(7)(c) of the Dutch Civil Code (no right to the transition payment where the end of the employment contract results from the employee’s serious culpability) was not met. The employee was entitled to the transition payment.
The Supreme Court ruled as follows. There are certain exceptions to an employee’s right to a transition payment. One such exception applies where the end, or non-continuation, of the employment contract results from serious culpability on the employee’s part (Section 7:673(7)(c) BW). This exception has a narrow scope and must be applied with restraint. An employee can only lose their right to the transition payment in exceptional cases, where it is evident that the conduct or omission leading to dismissal must be classified not merely as culpable, but as seriously culpable. In assessing whether this exception applies, the circumstances of the case must be taken into account insofar as they affect the culpability of the employee’s conduct or omission that led to the dismissal.
The foregoing concerns the employee’s culpability. The employer’s own conduct or omissions must also be taken into account among the circumstances affecting the employee’s culpability. It is therefore inconsistent to require a court to start from the premise that an employee, given the conduct they engaged in, is seriously at fault, and to limit the inquiry into culpability to whether exceptional circumstances mean the employee is nonetheless not seriously at fault in their legal relationship with the employer. That approach would also fail to give sufficient weight to an employer’s responsibility to prevent inappropriate conduct within its organisation as far as possible, and to act on signals of such conduct.
For the full ruling, click here (in Dutch).
For the text of Section 7:673 BW, click here (in Dutch).
Questions about the above?
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