The employee had worked as a cleaner since early 2011. In 2013, 2014, 2015 and 2016, he returned from holiday later than agreed. He received several warnings. The employer informed him in writing that, if he again returned late from holiday, he would be summarily dismissed.
On 28 July 2020, the employee reported sick. He began reintegrating in late 2020. When approving a holiday request for a trip to Ghana, the employer emphasised that the employee was expected back at work on 8 February 2021, and that he had to report sick immediately in case of any illness.
On 8 February 2021, the employee indicated he would not be able to return to work for another three weeks. He stated he was unable to return to the Netherlands and was undergoing medical treatment in Ghana due to illness, referring to a statement from a clinic there. That same day, the employer sent him a message stating that undergoing treatment in Ghana without the occupational health service’s permission was not allowed. Since the employee had travelled to an area with an orange travel warning and returned later than agreed, his pay was suspended. He was told he would be summarily dismissed if he did not report for work within five days. On 15 February 2021, he was summarily dismissed. He returned to the Netherlands on 20 March 2021. At first instance, the employee sought annulment of the summary dismissal, which the court rejected. He appealed.
The Court of Appeal’s ruling
The Court of Appeal held that the statement from the treating doctors in Ghana raised questions. Based on that statement, the occupational health physician had found the employee fit to return to the Netherlands, since he had the same complaints as before his holiday. He could have requested a second medical opinion on this. The Court of Appeal did not accept his argument that he was entitled to rely on the advice of the Ghanaian treating doctors. It concluded that he had, without good reason, failed to report for work between 8 and 13 February 2021. Given the earlier warnings for returning late from holiday, and the clear warning to return to the Netherlands within five days, the Court of Appeal ruled there was urgent cause for the summary dismissal. The employee had rightly been 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
