What can you do if an employee has been declared unfit for work, but is meanwhile (secretly) working for another employer? Can that employee be dismissed, for example because he is not making full use of his capacity for his own job? The District Court The Hague recently examined this highly practical question.
Facts
The employee joined the employer on 1 July. On 1 September 2021, he was declared 100% unfit for work due to hip complaints. In 2022, the company doctor established that his mobility had seriously deteriorated and advised that he do seated work, for example from home. To be able to walk, he was said to need crutches. On the night of 29 October 2022, the employer’s representative saw the employee in a restaurant and reported to the employer that the employee was working the till. He stood on his feet all evening, walked back and forth around the restaurant, and did so entirely without crutches.
The employer asked Security Consultancy Bureau JWV (the investigation agency) to look into whether the employee might be carrying out other work for other employers. The agency reported that the employee walked without crutches every day and left home at around 9am on working days. He was also observed at a shop, which he opened with a key, where he put signage outside before sitting down in the shop office. He was also seen leaving the shop – where he apparently also worked – without crutches. On Tuesday 13 December, the employee had a meeting with the occupational health service. Afterwards, he was seen again sitting in the shop office, speaking to the investigator as a member of staff.
It appeared the employee held multiple jobs while declared unfit for work. He was summarily dismissed on 16 December 2022 for deception and making statements at odds with the truth regarding his incapacity for work. The employee disagreed and brought legal proceedings seeking, among other things, to have the summary dismissal annulled.
Ruling
The subdistrict court ruled that the summary dismissal had been given without delay. On the very day the employer received the investigation findings, it invited the employee to a meeting, after which he was dismissed with immediate effect. The company doctor’s findings differed so significantly from those of the investigation agency that the court found it credible that the employee had not, in fact, suffered from pain complaints throughout the period in question. Given this stark discrepancy, the employee had misled the employer by making false statements about his incapacity for work and workload capacity. This is a serious breach of his obligations towards his employer and qualifies as urgent cause for summary dismissal. The request to annul the summary dismissal was rejected. The employee was also found not to be entitled to the transition payment.
A quick refresher
Summary dismissal occurs far more often in practice than many employers think. Our lawyers deal with it regularly. Deception and misrepresentation are listed in the law as urgent cause and can, individually or together, lead to a valid summary dismissal, even in situations unrelated to incapacity for work. Want to talk through a possible summary dismissal?
For the full ruling, click here (in Dutch).
Do you have questions following this ruling? Please feel free to contact one of our lawyers, without obligation. Call: +31 (0)10-2492444.
