The employee (role: tram driver) had worked for GVB Exploitatie B.V. since 18 June 1996. On 11 November 2021, during her shift, an incident occurred on the tram in which a scuffle broke out between her and a female passenger. There was scratching and biting, and the employee ended up on her back on the cabin floor. After bystanders separated the employee and the passenger and the passenger left the tram, the employee also left the tram unattended, ran after the passenger, and detained her. Both parties were subsequently taken to the police station. No formal police report was ultimately filed. GVB suspended the employee. She argued that she had acted purely in self-defence, and that she had only run after the passenger because she felt the passenger should not get away with it and that the police needed to be involved. GVB asked the subdistrict court to dissolve the employment contract, citing culpable conduct (the “e-ground”) or a loss of confidence in the employee (the “h-ground”).
The subdistrict court ruled that the facts and circumstances put forward by GVB did not amount to a reasonable ground for dismissal. Although GVB had not relied on the scuffle itself as grounds for dissolution, how the scuffle arose and unfolded was relevant, since GVB criticised the employee for allegedly failing to de-escalate. The CCTV footage reviewed at the hearing showed the passenger pushing against the cabin door, with the employee pushing back from the other side, after which the passenger quite suddenly and very forcefully attacked the employee, causing her to end up on her back on the cabin floor. The footage also showed that it took considerable effort from bystanders to pull the passenger off the employee. Although, with hindsight, one might imagine other ways the employee could have responded in this situation – such as GVB’s suggestion that she should have retreated into the cabin after the door collision – given the speed and ferocity of the passenger’s reaction, the employee cannot be blamed for not following “the textbook” in the heat of the moment, or for holding the passenger back and then defending herself against the attack. It remained unclear what else, and at what point, she could have de-escalated further. The footage also showed several passengers leaving the tram after the incident. It further showed that, after getting up from the floor, the employee stood somewhat dazed near the tram entrance before deciding to go after the passenger. In breach of the clear instruction never to leave a tram unattended, she did exactly that. This conduct, even though no passengers remained on board, was culpable, but given the exceptional circumstances in which it occurred, not so culpable that the employer could not reasonably be required to continue the employment relationship. Given the ferocity of the attack and its visible effect on the employee, she cannot be blamed for the fact that her statements that day were, on some points, inconsistent with those of others. The subdistrict court ruled that the employee’s conduct around the incident was certainly grounds to discuss with her how she could act better in similar situations in future, and to give her a warning for leaving the tram unattended. However, there was no culpable conduct of a kind that meant the employer could not reasonably be required to continue the employment relationship. Given that this was an exceptional and intense incident, it could not justify an immediate, total loss of confidence in the employee. It was also relevant that she had worked at GVB for 25 years without any similar conduct occurring. The request for dissolution was rejected.
For the full ruling, click here (in Dutch).
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