An employee who joined McDonald’s in February 2019 became ill in March 2020. On 2 July 2020, the company doctor found she was able to carry out suitable work. That same day, McDonald’s called her in to work on 4 and 5 July 2020. She did not do so. McDonald’s then announced a wage sanction. On 13 and 21 July 2020, it summoned her to resume her work. She did not. On 28 July 2020, McDonald’s issued a second warning, stating that a refusal could have consequences for her role and employment. She still did not resume her work. On 3 August 2020, McDonald’s summarily dismissed her. The subdistrict court ruled that the summary dismissal had rightly been given. The employee appealed.
The Court of Appeal held that an employer should exercise restraint before summarily dismissing an employee who refuses to reintegrate. The law already provides a sanction for refusing to cooperate with reintegration: a wage stop. Summary dismissal was too severe a sanction here. At the point of dismissal, the wage suspension had only been in effect for one month and had not yet actually been “felt in the wallet” by the employee, since her wages would normally have been paid between 1 and 9 August 2020.
McDonald’s had, however, rightly stopped paying her wages. She had insufficiently cooperated with reintegration, even though the company doctor had found she was able to carry out suitable work. Under Section 7:629(3)(c) of the Dutch Civil Code, an employee has no right to pay for the time during which she refused, without valid reason, to carry out suitable work.
The employee was not entitled to the transition payment. Her failure to cooperate with reintegration was seriously culpable. The Court of Appeal took into account that she had not shown up at all, meaning McDonald’s could not even discuss the matter with her. She had made no attempt whatsoever to perform adapted work.
Since she had been wrongly summarily dismissed, she was entitled to fair compensation. The Court of Appeal noted that McDonald’s giving summary dismissal was not right, but also not entirely incomprehensible. At the same time, the Court understood that the employee herself firmly believed she could not reintegrate, even though the UWV and the company doctor found otherwise. It was also relevant that she had only been employed by McDonald’s for a short time. Weighing everything together (including her monthly salary of just under EUR 600 gross), the Court considered fair compensation of EUR 2,000 gross appropriate.
For the full ruling, click here (in Dutch).
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