07 jan The inspection regulations do not apply during leave
The employee was wrongly dismissed with immediate effect for failing to comply with control regulations during illness. The employee was on leave at the time and was not bound by the control regulations. The employee is entitled to a fair compensation of EUR 50,000 gross.
Inspection Regulations Facts
The employee (Chief Communication Officer) was employed by the employer since 1 September 2012. At the end of December 2020, the employee called in sick. The employer then directed the termination of the employment. On April 13, 2021, the employer submitted a request for termination. The Subdistrict Court rejected the request on July 22, 2021. After this, the parties focused on the reintegration of the employee. On August 9, 2021, the employee submitted a leave request for the period from September 2 to 6, 2021. On August 30, 2021, the employer rejected this application.
The employee was invited for an interview on September 6, 2021. On September 3, 2021, the employee indicated that the grandmother of his oldest children had passed away and that he did not know whether he would be able to attend the interview on September 6, 2021. Between 6 and 9 September 2021, the employer and the employee’s representative corresponded about the reintegration. The employee was fired on September 9, 2021. In the letter of dismissal, the employer stated that the employee had been dismissed because the employee had not cooperated with his reintegration despite the advice of the company doctor. In particular, it concerned suspicions of irregularities on 3 and 6 September 2021. On those days, the health and safety service had made a home visit and on both occasions it turned out that no one was home. The employee indicated that he had been away for an errand on those days.
The employee acquiesced in the dismissal and requested, among other things, fair compensation.
Judgement
The central question was whether the employee was justified in not cooperating in his reintegration between 2 and 6 September 2021. The employer had not rejected the employee’s request for leave within two weeks. As a result, the leave had been established (Article 7:638 paragraph 2 of the Dutch Civil Code). The employee therefore took leave from 2 to 6 September 2021. During this period, the employee was not obliged to cooperate with reintegration obligations. The employee did not have to keep himself available for (unannounced) inspection visits by the health and safety service.
The mere failure to comply with control regulations in the event of illness does not constitute an urgent reason for dismissal. According to settled case law, the employer must first impose a wage penalty in such a case. There was no evidence in this case of additional circumstances to nevertheless arrive at a legally valid summary dismissal. The subdistrict court judge ruled that the instant dismissal was too far-reaching and was therefore not legally valid.
Since the employment contract was terminated in violation of the law, the employer acted seriously culpably. The employee is entitled to a fair compensation of EUR 50,000 gross. In addition, the employee is entitled to a gross compensation of EUR 39,745.27 for failure to observe the notice period and the transition compensation of EUR 44,309.29 gross.
If an employee does not meet his reintegration obligations, the employer can impose a wage penalty. In such a case, the employer cannot quickly proceed with instant dismissal. This is only possible in case of additional circumstances. This is also apparent from our previous blog .
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Questions about the above?
Please contact one of the employment lawyers at Sørensen Advocaten. Call: 010-2492444
