The employer acted in a seriously culpable manner by offering the employee a settlement agreement while he was sick. The employee is entitled to fair compensation. He was not, however, awarded full reimbursement of his legal costs, since the employer had not abused its procedural rights.
Facts
The employee had worked for the employer since 2007. Over time, his role changed from tile-setter to site supervisor. In April 2021, he had an evening conversation with his boss about his performance and his wish to work fewer hours. The parties did not reach agreement. During the conversation, in an emotional outburst, the employee said he wanted to stop working. Two days later, he reported sick.
On 29 April 2021, the employer’s representative sent the employee a letter offering a settlement agreement, without any transition payment. The employee rejected this proposal and disputed that he was no longer able to fulfil his employment contract. He stated that he had only indicated he no longer wanted to work weekends, and wanted to work from home on Friday mornings so he could take his children to and from school. The employer refused this request. The employer argued that the employee was hard to reach and had suddenly taken holiday days without properly handing over his work, seriously damaging its trust in him.
The employee’s representative stated that he was sick and that the company doctor’s assessment should be awaited. On 12 May 2021, he was declared fully unfit for work. On 14 May 2021, the employer’s representative stated that there was a serious suspicion that the employee had not always been fully committed to the business during agreed working hours, and that this amounted to urgent cause for ending the employment contract.
The employer sought dissolution of the employment contract based on culpable conduct (the “e-ground”), a disturbed working relationship (the “g-ground”), or other grounds (the “h-ground”).
Ruling
The subdistrict court ruled that the employee was indeed ill, but that the dismissal prohibition during illness did not stand in the way of dissolution (Section 7:671b(6)(a) and (b) of the Dutch Civil Code). According to the subdistrict court, the employment contract needed to end in the employee’s own interest, since the situation was harming his health.
Dissolution on the e-ground was rejected by the subdistrict court, since there was no conduct so culpable that the employer could not reasonably be required to continue the employment contract. It was not established that the employee had worked substantially too few hours, or attended to private matters during working hours, as the employer claimed.
There was, however, a disturbed working relationship (the g-ground). The employee acknowledged this too, but argued it was the employer’s fault. According to the employee, the employer had failed to take his personal circumstances into account. He also argued that the disturbance resulted from the employer’s own seriously culpable conduct.
The subdistrict court ruled that the employee was dealing with special and unfortunate personal circumstances, meaning communication was not always optimal. On top of that, the employer had sent him a settlement agreement while he was sick. The employer had also pressured him to submit his hours within two days, threatening dismissal if he failed to do so. In the subdistrict court’s view, this letter was improper. The employer had acted in a seriously culpable manner. The employee is entitled to fair compensation of EUR 35,000 gross.
For the full ruling, click here (in Dutch).
Questions about a settlement agreement leading to fair compensation?
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