An employee who systematically refused to wear a face mask while working acted (seriously) culpably. The employment contract was dissolved with immediate effect, without any transition payment.
Facts
The employee had worked since 24 November 2015 at Asito Transport Aircraft Services B.V. as a ground-transport equipment worker. Asito cleans aircraft at Schiphol Airport. Due to the coronavirus outbreak, Schiphol applies a strict face-mask requirement in all areas of the airport and on aircraft. This was communicated in writing to all Asito employees on 17 September 2020.
The employee refused to wear a face mask while working on four occasions. Asito held several conversations with him, each time pointing out the importance of wearing a face mask and the consequences a refusal could have for his employment contract. On 2 August 2021, Asito suspended him by letter for refusing to wear a face mask and stopped paying his wages. Asito then sought dissolution of the employment contract due to (serious) culpable conduct by the employee. It also requested dissolution as soon as possible, without any transition payment, given his serious culpability in refusing to wear a face mask despite all the conversations and warnings.
Ruling
The subdistrict court held that an employment contract can only be dissolved where a reasonable ground exists. In this case, the employee’s culpable conduct constituted a reasonable ground for dissolution. As an employer, Asito has the authority to give instructions on how work is carried out, and the employee is obliged to follow them, under Section 7:660 of the Dutch Civil Code. Asito was therefore free to require employees to wear a face mask, in line with Schiphol’s guidelines. It was relevant that, in a working environment like this, stricter-than-average rules apply, which everyone must follow.
The employee repeatedly refused to wear a face mask while working, meaning he could not carry out his duties. Asito had repeatedly pointed this out and warned him of the possible consequences for his employment. Despite this, he refused to comply with Asito’s instructions. The subdistrict court ruled that this constituted seriously culpable conduct, meaning he had no right to the transition payment. Refusing to wear a face mask on its own would not meet the threshold of serious culpability, but given that the employee refused repeatedly, that his attitude also hindered his colleagues’ work, and that the organisation had a significant interest in face masks being worn, this combination of facts amounted to serious culpability.
For the full ruling, click here (in Dutch).
Questions about the above?
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