The employee, aged 59, had worked for Stichting ViVa! Zorggroep (“Viva!”) since 19 July 2011 as a housing and wellbeing worker in the department for elderly residents with dementia. On 6 January 2021, Viva! received a report from a colleague of the employee about an incident involving powdered sugar on 31 December 2020, involving the employee and her colleague. On 7 January 2021, the employee was suspended pending investigation. That same day, Viva! engaged Hoffmann corporate investigators to carry out an external investigation. On 21 January 2021, Hoffmann reported its findings to Viva! in writing. On 22 January 2021, Viva! invited the employee to a meeting. During that meeting, on 25 January 2021, Viva! put Hoffmann’s findings to her, after which she was summarily dismissed for her involvement in the incident with a resident with dementia on 31 December 2020. The employee and a colleague had given a vulnerable resident with dementia a straw and shown and encouraged her how to snort a line of powdered sugar through it using her nose. This was filmed while laughing, and the recording was then shown to other colleagues. The parties disputed whether the summary dismissal had rightly been given.
Viva! only became aware of the incident on 6 January 2021. It acted immediately, asking the employee and her colleague for a statement on 7 January 2021. In the subdistrict court’s view, it was understandable that Viva! engaged Hoffmann: this was a sensitive matter (involving a resident), on which the employee and her colleague had given differing accounts. It reflected diligence that Viva! did not have the investigation carried out by an internal staff member, but instead engaged an independent external expert. Viva! explained that, after receiving Hoffmann’s report on Thursday 21 January 2021, it took a short time to study the report, hold internal discussions and seek legal advice, before inviting the employee the next day, Friday 22 January 2021, to a meeting on Monday morning, 25 January 2021. The subdistrict court ruled that Viva! had acted with sufficient speed.
The subdistrict court ruled that the employee’s conduct, in the specific circumstances of the case, constituted urgent cause for summary dismissal. Decisive here was that the employee and her colleague worked with a vulnerable target group, entirely dependent on the care of Viva! and its staff. Creating a safe living environment for these residents is therefore a core task of Viva!’s employees. Viva! must at all times be able to trust that its staff will do nothing, or fail to do anything, that could endanger that safe environment. The subdistrict court held that the employee and her colleague had seriously failed in this core task on 31 December 2020. Although they each pointed fingers at the other on certain points, both were responsible for the incident. Both played an important part in creating the situation and at no point tried to stop it. In doing so, they showed insufficient awareness of the vulnerability of the group they work with. The employee’s argument that the recording was not shared further, and that she deleted it immediately, does not change this. By filming the situation, she took the risk that the footage could (unintentionally) spread further, which would have seriously harmed the resident, her family, and Viva!.
Nor did the subdistrict court accept the employee’s claim that she never intended to film the resident. That she had no malicious intent, that it was meant as a “joke”, and that she regrets her conduct, do not justify her behaviour. The same applies to her argument that the resident was not affected by it – a claim Viva! substantiated and rebutted with reference to statements from three colleagues, who each independently stated that the resident was upset, distressed, and felt laughed at. The fact that Viva!, despite current staff shortages in healthcare, still chose to summarily dismiss an experienced employee underlines the nature and seriousness of the incident. The personal circumstances raised by the employee – such as the length of her employment, her age, her good performance, the financial consequences of dismissal, and her remorse – do not, in the subdistrict court’s view, lead to a different conclusion. She was rightly summarily dismissed.
For the full ruling, click here (in Dutch).
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