05 jan Unjustified dismissal after refusal to reintegrate
An employee who joined McDonald’s in February 2019 will become ill in March 2020. On 2 July 2020, the company doctor ruled that the employee can perform suitable work. That same day, McDonald’s called on the employee to come to work on July 4 and 5, 2020. The employee has not done this. McDonald’s subsequently announced a wage penalty. On July 13 and 21, 2020, McDonald’s summoned the employee to return to work. She didn’t. On July 28, 2020, McDonald’s issued a second warning, announcing that a refusal could affect its position and employment. The employee has not resumed work. McDonald’s fired the employee on August 3, 2020. The Subdistrict Court ruled that the summary dismissal was justified. The employee has appealed.
The Court of Appeal stated that an employer should exercise restraint in giving instant dismissal to an employee who refuses to reintegrate. The law already provides for a sanction for refusing to cooperate with reintegration, namely a wage freeze. The instant dismissal was too severe a sanction. At the time the employee was fired, the pay suspension had only been in effect for one month and had not yet been ‘felt in the wallet’ by the employee, as the pay would normally have been paid between 1 and 9 August 2020.
McDonald’s had rightly stopped paying wages. The employee did not cooperate sufficiently with the reintegration, while the company doctor had judged that she could perform suitable work. Under Section 7:629(3)(c) of the Dutch Civil Code, the employee is not entitled to wage payment for the time that she has refused to perform suitable work without good reason.
The employee is not entitled to the transition payment. The employee’s failure to cooperate with the reintegration is seriously culpable. In doing so, the Court of Appeal took into account that the employee did not come at all, so that McDonald’s could not enter into a discussion with her about this either. The employee has not made any attempt to perform adapted work.
Since the employee was wrongly dismissed with immediate effect, she is entitled to fair compensation. The court indicated that the instant dismissal given by McDonald’s was not good, but also not completely incomprehensible. On the other hand, the Court of Appeal also understands that the employee herself was firmly convinced that she could not reintegrate, although the UWV and the company doctor thought so. It was also relevant that the employee had only been employed by McDonald’s for a short time. All things considered (including the monthly salary of just under EUR 600 gross per month), the Court of Appeal considered a fair compensation of EUR 2,000 gross to be appropriate.
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