The employee was wrongly summarily dismissed for failing to comply with sickness-absence check-in rules. At the time, he was on approved leave and was not bound by those rules. He was awarded fair compensation of EUR 50,000 gross.
Facts
The employee (Chief Communication Officer) had worked for the employer since 1 September 2012. In late December 2020, he reported sick. The employer subsequently pushed for ending the employment relationship. On 13 April 2021, it filed a request for dissolution. The subdistrict court rejected this request on 22 July 2021. The parties then focused on the employee’s reintegration. On 9 August 2021, he requested leave for the period 2-6 September 2021. On 30 August 2021, the employer rejected this request.
The employee was invited to a meeting on 6 September 2021. On 3 September 2021, he informed the employer that his eldest children’s grandmother had passed away, and that he did not know whether he would be able to attend the meeting on 6 September. Between 6 and 9 September 2021, the employer and the employee’s representative corresponded about his reintegration. On 9 September 2021, he was summarily dismissed. In the dismissal letter, the employer stated that he had been dismissed because, despite the company doctor’s advice, he had not cooperated with his reintegration – specifically referring to suspected irregularities on 3 and 6 September 2021. On those days, the occupational health service had made a home visit, and on both occasions found no one home. The employee explained that he had briefly been out running an errand on those days.
The employee accepted the dismissal but sought, among other things, an award of fair compensation.
Ruling
The central question was whether the employee had rightly failed to cooperate with his reintegration between 2 and 6 September 2021. The employer had not rejected his leave request within two weeks, meaning the leave was deemed granted by operation of law (Section 7:638(2) of the Dutch Civil Code). The employee was therefore on approved leave from 2 to 6 September 2021. During this period, he was not required to cooperate with reintegration obligations, nor to remain available for (unannounced) check-in visits from the occupational health service.
Merely failing to comply with sickness-absence check-in rules does not, on its own, constitute urgent cause for dismissal. Under settled case law, an employer must first impose a wage sanction in such cases. No additional circumstances justifying a valid summary dismissal were found here. The subdistrict court ruled that summary dismissal was too far-reaching a measure and had therefore not been validly given.
Since the employment contract was terminated in breach of the law, the employer had acted in a seriously culpable manner. The employee was entitled to fair compensation of EUR 50,000 gross. He was also entitled to compensation of EUR 39,745.27 gross for failing to observe the notice period, and to the transition payment of EUR 44,309.29 gross.
Where an employee fails to meet their reintegration obligations, the employer can impose a wage sanction. In such a case, the employer cannot readily proceed to summary dismissal – that is only possible where additional circumstances are present. This also follows from our earlier blog (in Dutch).
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
