No Summary Dismissal for Employee who Worked elsewhere during Absenteeism due to illness

Year of publication

2020


Year of publication

391


Reference

Court of Appeal of Arnhem and Leeuwarden, 18 August 2020, ECLI:NL:GHARL:2020:6500


Decision

A production employee who had worked as a pizza delivery boy while being ill was unjustly summarily dismissed, because the employer could not substantiate his statement that the employee’s disabilities were pretended.

A metal company employed a production employee who had been incapacitated for work since 11 March 2019 due to an industrial accident. During this accident the employee had a complicated leg fracture. The occupational physician considered the employee capacitated for work again for a few hours per week as of 15 November, 2019. The focus here should be on sedentary work. Also short-distance driving would be allowed for the employee.
Due to pain symptoms, however, the employee only managed to partially carry out the reintegration activities. But, when a colleague ordered a pizza on the evening of Saturday 14 December, 2019, it appeared that it was delivered by the employee. Then the employer commissioned an investigation agency. It noted that, on Saturday 21 December 2019, it had observed that the employee left a pizzeria with delivery bags several times, after which he drove away with his car. When the employer asked about it, the employee denied that he delivered pizzas. He added that he wouldn't even be able to drive a car due to the pain in his leg. Then the employee was summarily dismissed for working elsewhere while he was unable to even partially perform the light reintegration labour at the employer’s.

The employee requested the Sub-district Court to annul the summary dismissal. According to the employee, he only lent his hand to his friend and owner of the pizzeria without being paid for it. As for the other accusation, he had done nothing more than picking-up food for his daughter's birthday party. The Sub-district Court rejected the request to annul the summary dismissal.

After the employee’s appeal, however, the Court of Appeal ruled otherwise.
According to this Court, the key of the urgent reason for the summary dismissal was that, according to the proven activities performed elsewhere, the employee would have pretended his disabilities. The Court believed that there was no evidence for this allegation.
It was known that the employee would need additional leg surgery. The occupational physician had also identified restrictions and the employer had taken no action when, previously, the employee did not fully fulfil his reintegration activities due to pain symptoms. This proved that the restrictions had correctly been established. According to the Court of Appeal, the fact that the employee walked and moved without observable physical disabilities, as the investigation agency had noted, did not preclude the fact that the employee’s leg hurt so much that he was unable to fully meet his reintegration obligations. Therefore, the summary dismissal was subsequently annulled. The Court of Appeal did believe, however, that the Sub-district Court would have granted the request for conditional dissolution of the employment contract that the employer had submitted. According to the Court of Appeal, the Sub-district Court would have decided to terminate the employment contract for a disrupted employment relationship. By lying to his employer about his ancillary activities, the employer had rightly lost confidence in the employee. Therefore, the Court decided not to restore the employment contract, but instead to grant the employee a severance payment (a fair compensation) plus the transitional allowance to which the employee would have been entitled upon termination of the employment contract, and an amount of € 1,000 for the sudden loss of income without any prospect of obtaining a benefit.


Comments

The Court of Appeal’s decision is based on a very strict interpretation of the urgent reason as the employer had described it in the dismissal letter. It might have been better if the employer also had argued that an(other) urgent reason was that the employer had lost confidence in the employee due to his actions. The decision of the Court demonstrates how accurate the wording of the urgent reason for the summary dismissal should be.
The outcome in this case is, nevertheless, very unsatisfactory.
Imagine this: An employee who secretly works elsewhere during his illness, who performs work there that conflicts with the symptoms and restrictions that he claims for performing the reintegration work for his own employer and who makes highly implausible statements about it, when requested.
In our opinion, this should in principle have been sufficient for a summary dismissal. Maybe it was the fact that the employee's labour incapacity was the result of an industrial accident that influenced the Court of Appeal’s strict judgment.



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