Last month, the District Court Limburg ruled on a case in which an employee, while on sick leave, went on holiday to Asia and worked there as a DJ. The employer summarily dismissed him.
Facts
The employee joined the employer as a chef on 1 September 2023. His vocational training was paid for by the employer, and he had a fixed-term contract. On 27 October 2023, he informed the employer that he would be away from the Netherlands for five weeks (late January to early March) and wished to take annual leave for that period. After the employee asked for confirmation of the leave two weeks later, the leave request was discussed on several occasions. The employer indicated it could not approve five weeks, but could approve a shorter period of three weeks and five days.
On 22 December, the employee received a written warning for arriving late to work and displaying an unprofessional and unmotivated attitude. A few weeks later, he reported sick. On 26 January 2024, he visited the company doctor, who confirmed he was ill and was undergoing intensive treatment at the time.
On 30 January 2024, the employer asked the employee whether he had gone on holiday after all. He replied that he was ill, but had been advised by the company doctor to go on holiday. The employer responded that it still was not clear whether he had actually gone away, and said it wanted to meet with him to complete an evaluation. The employee replied that his planned trip had fallen through, that he was currently staying with his parents, and that he was unable to meet for the time being.
On 5 February, the employee nevertheless left for Asia on holiday. The employer tried repeatedly to contact him, without success. It therefore reminded him in writing of his obligation to cooperate with evaluations and follow reasonable instructions relating to his reintegration, and warned that it would stop paying his wages if he again failed to cooperate.
The employee responded that, according to the company doctor, he only needed to be in contact with the employer once a week. He further argued that he was unable to meet because he was not in a position to look after his own interests.
On 17 February, the employer discovered that the employee was working as a DJ in Asia. It sent him an email and letter stating that it was remarkable that he was able to work when this was for his own account, and pointed out that he had lied about going on a trip. This letter summarily dismissed him.
Subdistrict court’s assessment
The subdistrict court ruled that the employee’s statement that his “planned trip had fallen through” showed that he was not, and would not be, going on holiday. Since he made this statement two days before actually leaving, his only apparent intention was to make the employer believe he was not going away. He should then have informed the employer once he had in fact gone on holiday and explained that this was why he could not meet. Instead, he created the false impression that he could not meet because of his intensive treatment programme.
The subdistrict court further ruled that, while an employee is free to decide how to spend his leave, he should have reported that his trip was in fact going ahead. Working as a DJ during that trip seriously breached the mutual trust between the parties. Moreover, the employee should not have cited his intensive treatment programme as the reason he could not speak with the employer, when that was not actually the case.
Finally, the subdistrict court ruled that the dismissal was given without delay: the employer discovered on 15 February that the employee was working as a DJ in Asia, and he was summarily dismissed two days later.
The subdistrict court ruled that the employee had rightly been dismissed on the spot.
For the full ruling, click here (in Dutch).
Do you have questions about taking holiday during illness? Please feel free to contact our employment lawyers.
