Employee, Summarily Dismissed for Failure to Comply with Reintegration Activities, Entitled to Half of the Transitional Allowance

Year of publication

2019


Edition number

333


Reference

Sub-district Court Amsterdam, 27 February 2019, ECLI:NL:RBAMS:2019:1468


Decision

The summary dismissal of a sick employee who persistently refused to perform reintegration work was legally valid. Since, however, the employee had always performed well and because of his personal circumstances, the employee was, nevertheless, entitled to half of the transitional allowance.

An employee worked as a dishwasher/cleaner in a hotel restaurant. Due to renovation of the restaurant, he had to temporarily perform alternative housekeeping work.
In March 2018, the employee reported ill. Initially the occupational physician saw no reintegration possibilities, but in June 2018 work resumption, following a progressive time schedule, was advised. However, the employee had objections to the work resumption and refused to resume work. When, subsequently, the hotel permitted an examination by another occupational physician, this doctor also diagnosed the employee suitable to do adapted reintegration activities.
Then the hotel summoned the employee by registered letter to start the reintegration work, threatening to discontinue the wage payment if he would fail to comply with the request.
When, nevertheless, the employee did not start the reintegration, the hotel confirmed the discontinuation of the wage payment by registered letter of 12 July 2018. A new examination by the occupational physician of 17 July 2018 confirmed the reintegration possibilities.
Hereby the employee was reminded of the option of requesting the UWV for an expert opinion. In a discussion on 6 September 2018, the employee was informed of the approach he should take in connection with his statement that he was unable to effectuate the reintegration activities. He was also warned for further disciplinary procedures if he would fail to take any action. This discussion was confirmed by registered letter of 10 September 2018 and, when the employee refused to accept this letter, the hotel had it served by the bailiff. The employee was called upon to commence work on 17 September 2018 at the latest. But when the employee did not do so, he was dismissed by registered letter of 18 September 2018.
Subsequently, the employee requested the Sub-district Court to immediately annul the summary dismissal. According to the employee, he was, in violation of the law, not summarily dismissed without delay. The Sub-district Court did not agree, however, since the employer had applied sufficient determination by first imposing a wage stop, then repeatedly requesting to start the reintegration activities and finally by giving a final warning. The Sub-district Court also did not support the employee's allegation that there was no urgent reason for the summary dismissal since the employee fell ill due to unilateral employment in another position that was physically too burdensome for him. According to the Sub-district Court, the work fell within the broad job description of the activities and was temporary only. Besides, the employee had refused an offer to temporarily perform lighter work. Therefore, according to the Sub-district Court, the summary dismissal was legally valid.
The employee had also claimed wages from the date of the wage freeze. This claim was rejected, however, because the employee had not submitted a UWV expert opinion accompanying his wage claim. The employee was successful with a third claim, however, in which he stated that failure to payment the transitional allowance would be unacceptable by standards of reasonableness and fairness. Since the employee had functioned well for eleven years and because of his personal circumstances, the hotel had to pay him half of the transitional allowance.


Comments

Case law of the Supreme Court shows that the sanction for non-compliance with reintegration obligations should in the first instance relate to discontinuation of the wage payment, but that a summary dismissal may be relevant if the employee’s failure to meet the obligations is accompanied by other facts and circumstances. In this case, it was not only the employee’s persistent refusal to start the reintegration, but also the omission to request a UWV expert opinion. By-the-way, the hotel could also have asked the Sub-district Court to terminate the employment contract. In that sense, it was quite risky to decide on the more far-reaching measure of a summary dismissal instead.
It may be surprising that the employee was still entitled to part of the transitional allowance despite the summary dismissal. After all, the employee had acted culpably and, therefore, would in principle not be entitled to the transitional allowance.
The law, however, provides for the possibility to grant the transitional allowance in full or in part to the employee if the decision not to grant the allowance would be unacceptable by standards of reasonableness and fairness. The Sub-district Court applied this possibility in this case.



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