The employer (supermarket Deka) summarily dismissed an employee for taking a damaged box of “tompouce” pastries. The subdistrict court ruled that the employer had not communicated its zero-tolerance policy clearly enough. Partly because of the employee’s long tenure (20 years) and the consequences of dismissal for her, the subdistrict court annulled the dismissal. The employment contract was nonetheless dissolved, since both parties agreed the working relationship had broken down.
Facts
The employee had worked for the employer since 5 November 2001. On 25 November 2021, she was summarily dismissed for taking a damaged box of pastries on 17 November 2021 without paying for it and without the employer’s permission.
The employee sought annulment of the summary dismissal, continued payment of wages, and to be allowed to resume her duties. The employer sought conditional dissolution of the employment contract.
The subdistrict court’s ruling
The subdistrict court ruled that the employer had acted with sufficient speed in giving the summary dismissal and communicating the urgent cause. It was relevant that the person authorised to give summary dismissal on the employer’s behalf learned of the urgent cause on Friday 19 November 2021, and that an investigation was launched immediately. The fact that the employee admitted the incident on 22 November 2021 did not mean the investigation could be skipped: the employer rightly argued it also needed to interview others involved and investigate compliance with company rules at the branch. That investigation did not take unnecessarily long.
The employer argued it applied a strict zero-tolerance policy, under which even a so-called “trivial offence” (theft of very low-value products) could justify a valid summary dismissal. The employee disputed that such a strict policy existed. The subdistrict court ruled that the employer had not made its zero-tolerance policy sufficiently clear. It had not been shown that staff were specifically informed of the policy (or its consequences). An employer applying a zero-tolerance policy is expected to communicate its content and consequences to employees clearly and with some regularity. The employer had not done so.
The employee had therefore been wrongly summarily dismissed. It was relevant that she had been employed for more than twenty years and had always performed well. The summary dismissal had a drastic effect on her income situation – she received no wages and/or benefit. Given her age and one-sided work history, it would also not be easy for her to find another, comparable job. Moreover, the employer had listed her in its internal and external fraud register. It was also relevant that she had not secretly taken the box of pastries, but had placed it on the checkout conveyor belt in full view of the cashier. The subdistrict court ruled that summary dismissal was too severe a measure here, and that the employer could have opted for a less far-reaching sanction. The summary dismissal was annulled, and the employee’s wage claim was granted.
The subdistrict court did dissolve the employment contract, since both parties agreed the working relationship had broken down, and redeployment was not a realistic option either. Although the employee’s conduct was certainly clumsy and culpable, it did not amount to serious culpability. She was therefore entitled to the transition payment. She was also awarded fair compensation of EUR 6,000, since the dismissal breached the applicable notice rules, which was seriously attributable to the employer.
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
