Dissolution of Employment Contract for Disruption of the Employment Relationship, Attributable to the Employer

Year of publication

2018


Edition number

296


Reference

Supreme Court, 16 February 2018, www.rechtspraak.nl, ECLI:NL:HR:2018:220


Decision

The employer’s and the employee’s culpability do play a role in proceedings where dissolution of the employment contract is requested for a disrupted employment relationship, but not a decisive one.

Since 2009, an employee has been working as an IT specialist at a company providing services in the field of information and communication technology. He is responsible for installing, managing, monitoring and maintaining the company's customers’ computer systems. When, late 2013/early 2014, a position change is implemented causing that the employee loses his entitlement to a company car, this leads to a long-term discussion between the employer and the employee, ultimately resulting in a very irritated e-mail message from the company’s managing director to the employee.
When, in 2015, the company introduces evening service, the long-standing discussion is reopened. In July 2016, a performance appraisal interview takes place in which the employee is granted a six-month’s period to improve his performance. The employee then takes the view that it is the employer’s intention to terminate the employment contract with him and, therefore, that there is no real improvement plan. Shortly after, the employee is questioned about sending company information to his private e-mail address. When the employee does not respond to the questions on this, he is suspended. After some investigation, it turns out that the employee sent, among others, minutes of a meeting, turnover figures, an annual account, customer data and a sales budget to his private e-mail address. An application for dissolution of the employment contract, lodged by the employer with the Sub-district Court, primarily based on culpable action and, in the alternative, on a disrupted employment relationship, is rejected by the Sub-district Court because the alleged facts and circumstances would provide an insufficient basis for the requested dissolution of the employment contract.
On appeal, the Court of Appeal comes to a different ruling. According to the Court of Appeal, culpable conduct was out of the question, because the employee had sent the documents to his private e-mail address as a result of stress, suspicion and fear of dismissal. There was indeed a disrupted employment relationship, however, according to the Court of Appeal, since the cooperation with colleagues as well as with the supervisor and the management deteriorated in such a way in the course of time, that the employment relationship has become seriously and permanently disrupted. It has become clear that the employee cannot accept decisions or situations he does not like, that he cloaks himself in them and keeps coming back to them, such as the issues relating to the business car. It is not so much about whether or not the employee was in his right, but about the tone of the discussion about it, its persistence and the negative effects it had on the working relationships.
The Court of Appeal dissolves the employment contract as per 1 April 2017.
As a result of the dissolution of the employment contract, the employee is entitled to the transitional allowance, but the Court rejects the employee’s request to grant equitable remuneration. The Court of Appeal believes that, true, the employer should have dealt more adequately with the employee's apparent psychological problems and should more actively have picked up the signals about the employee's mental health deterioration, but, according to the Court of Appeal, serious culpability was certainly not the case.

The employee cannot accept the Court’s decision and appeals in cassation to the Supreme Court. Because of the identified accusations against the employer, so the employee holds, the Court of Appeal should not have decided that “the working relationship was so much disrupted that the employer could not reasonably be required to continue the employment contract", as the law requires for termination of the employment contract. Different from what the employee states, the Supreme Court holds the opinion that for termination of an employment contract due to a disrupted employment relationship culpability of the employee is not required. Likewise, the employer's culpability does not prevent termination of the employment contract either. The extent to which the disrupted employment relationship can be attributed to a party or to both parties carries some weight, according to the Supreme Court, but it is not decisive. The Supreme Court adds that in their ruling they also took into account that the disruption of the employment relationship was not deliberately caused by the employer. That is why the Supreme Court upholds the judgment of the Court of Appeal.


Comments

The Explanatory Memorandum accompanying the Work and Social Security Act shows that termination of the employment contract due to a disrupted employment relationship should take place if the disruption is serious and sustainable. Thereby, it is possible to leave it as a question who caused this disruption of the employment relationship. Serious culpability of the employer may result in granting an equitable remuneration in addition to a possible transitional payment. Serious culpability of the employee may result in full or partial loss of the entitlement to the transitional allowance. However, since the law requires that the disruption of the employment relationship is such that the employer cannot reasonably be required to continue the employment contract, there were also judges who held the opinion that the employer's culpability for the outbreak of the disruption prevented termination of the employment contract. In its judgment, the Supreme Court explicitly states that the employment contract can also be terminated as a result of a disrupted employment relationship if this disturbance can be attributed to the employer. It only appears to be different if the employer deliberately caused the disruption of the employment relationship.



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