Summarily dismissed for false statements about illness
The employee had been employed by the employer as a mechanic on a permanent contract since 1 April 2020. On 23 March 2021, he reported sick. He stated that he was unable to drive and unable to come to the office or the outdoor site.
The employer subsequently learned that a colleague had seen the employee driving. On the employer’s initiative, someone then visited the employee and saw him doing DIY work on his new house. This raised doubts about the accuracy of the employee’s statements regarding his limitations, so the employer engaged a private investigation agency.
On 30 March 2022, a WhatsApp conversation took place between the employer and the employee. When asked whether he was able to drive, the employee replied: “unfortunately I can’t, hopefully things will become clearer after the MRI scan.” That same evening, the investigation agency reported a break-in at their surveillance vehicle – the employee’s wife had removed the camera from it. That same evening, the employer was informed of the agency’s findings, and the employee was summarily dismissed.
The employee sought to have the dismissal annulled and a declaratory judgment that the employment contract had not ended.
Subdistrict court’s ruling
The reason for the summary dismissal was that the employee had carried out DIY work and driven a car while on sick leave, despite having stated he was unable to do so.
The employee first argued that his privacy had been violated by the use of the investigation agency. The subdistrict court ruled that the employer’s interest in establishing the truth outweighed the employee’s right to privacy. The privacy intrusion was limited. A car with a camera was parked near the employee’s new home. This camera could only be operated and record the employee when the investigator was within 150 to 200 metres of the vehicle. Footage was only taken while the employee was present at the property doing DIY work, and no footage of his family was recorded. The investigation also lasted only three days. This was not disproportionate, and a less intrusive method was not available to achieve the goal (establishing the truth). Given the suspicion that the employee had lied, a conversation with him was not a suitable way to get to the truth: the subdistrict court found it implausible that he would have told the truth in a conversation, or that the employer would have believed his statements. The privacy argument therefore did not help the employee.
The employee admitted to having done DIY work on his house while on sick leave, but stated he had only done what his limitations allowed. This did not match the investigation agency’s findings, which included photos showing him making movements he claimed to be unable to make.
Regarding driving, the employee stated he could only drive an automatic, and that all of the employer’s company cars had manual transmissions. This argument did not help him either: the subdistrict court found it implausible that he would state he was unable to drive without mentioning that he could drive an automatic, particularly since 80% of the company’s cars were automatics. He should have made clear that he could drive an automatic, so the employer could take this into account.
The employee further argued that the employer should have offered him suitable work following his first-year evaluation. This did not detract from the existence of urgent cause for summary dismissal. It was, in any case, understandable that the employer found it difficult to offer suitable work to someone unable to come to work at all.
The employee had made incorrect and incomplete statements about the severity of his limitations and capacity to work while on sick leave, and had lied to the employer. He was therefore rightly summarily dismissed. He was ordered to pay the employer fixed statutory damages of EUR 3,255.92.
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
