No dismissal for employee convicted for possession of child pornography

Year of publication

2010


Year of publication

182


Reference

Subdistrict court Leeuwarden 12 May 2010, www.rechtspraak.nl, ljn: BM5493


Decision

Since 20 November 2006, a machine woodworker has worked at a construction company. On 14 September 2009 he is arrested by the police on suspicion of a sexual offense: having child pornographic materials on his computer. His remand lasts until 24 March 2010. He was convicted by the criminal court to twelve months imprisonment, with six months on probation. A newspaper report on the court hearing creates a great deal of unrest in the employer’s company. Colleagues refuse to work with this employee and the construction company fears damage to its reputation. The employee is also suspected of other criminal offenses and of violating the company rules. The employer therefore requests the subdistrict court to dissolve the employment contract with the employee.

According to the subdistrict court, the offenses occurred in the employee’s private life. There is no overlap with the employer’s business activities. The subdistrict court also concludes that the employment contract was maintained during the employee’s detention (initially the employer had written in September 2009 that a consultation should take place after the employee was released, to determine whether or not his employment should be continued). The employer should be expected to facilitate the employee’s return and deals with any unrest. The attitude of rejection by the other employees is no reason for the subdistrict court to dissolve the employment contract. The subdistrict court states that damage to the reputation and violation of the company rules has not been proven. For that reason, he rejects the request to dissolve the employment contract.


Comments

Detention of an employee presents a serious problem for the employer. The problem is not continued payment of wages. The employer is not obliged to do so, because the reason for not executing the work is to the employee’s risk. However, dismissal of the employee is a problem. If the employee does not appear at work when he is placed in detention, the employer does not know enough about the reason for his absence, let alone that he can prove that. Furthermore, the employee’s guilt is only determined at a much later time, when the criminal court’s ruling becomes irrevocable. If, for that reason, the employer does not choose summary dismissal, often the subdistrict court will have to dissolve the employment contract, as soon as there is an irrevocable ruling by the criminal court or at the end of the detention. However, the subdistrict court will then often protect the employee from dismissal with the argument that the employee is otherwise punished twice. The ruling of this subdistrict court illustrates this. This will only be different if the offense is committed on the job or if there is a relationship to the work. Oddly enough, the long absence from work, for which the employee is to blame, is not a reason to dissolve the employment contract. There appears to be little understanding of the employer’s interest. We think that, in choosing between two evils, it is preferable for the employer to dismiss the employee as soon as his absence due to detention warrants this.



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