Summary Dismissal for Giving a Colleague a Hug, in Violation with the Corona Rules?

Year of publication

2020


Year of publication

396


Reference

Sub-district Court of Rotterdam, 14 August 2020, ECLI:NL:RBROT:2020:7517


Decision

Despite the fact that the employee's behaviour was seen as provocative, giving a colleague a hug, which was in violation with the corona rules, was no compelling reason for his summary dismissal. However, since the employee had already been warned before for infringement of the company regulations, the employment contract was dissolved anyway, be it for a disrupted employment relationship.

An employee of a chain of workshops was in charge of one of the branches as its supervisor. The employee had been in the employer’s service since 1986 and had already had several warnings for consuming alcoholic beverages after the branch’s opening hours. The last time, which was in 2018, the employee was even penalised with a transfer and a wage penalty.
On that particular occasion the employee, together with a number of football friends, had consumed alcoholic beverages. One of those friends had kicked the employer's HR employee, who had detected the violation of the company rules, in the back.
In May 2020, the same HR employee visited the employee's branch, accompanied by the employer’s regional sales manager. It was a first branch visit after a period of teleworking in the context of the corona crisis. While the HR employee and the regional sales manager were waiting at the front desk for the employee to arrive, this employee walked out of the workshop, took off his right hand work glove and tried to shake hands with the HR employee. When the HR employee made a repelling gesture, the employee grabbed the HR employee with both arms by the shoulders. Even though the HR employee tried hard, he could not avoid a hug. According to the HR employee, the employee also added: "I have corona and now I have infected you". Afterwards, however, the employee stated that he had said something like: "Are you afraid I have corona and that I infected you?"
Firstly, the employer suspended the employee and then summarily dismissed him. He was accused of having the HR employee exposed to a serious risk, having threatened the HR employee and having tried to assault him.
Later it turned out that the employee had not been infected with the corona virus.

The employee requested the Sub-district Court to annul the summary dismissal.
The Sub-district Court qualified the employee's behaviour as provocative and irresponsible. Moreover, the Sub-district Court found it really incomprehensible that, after the incident, the employee, after having gone to the reception, stretched his arm to the HR employee again and closely approached the HR employee. According to the Sub-district Court, the employee's defence that he had acted from his enthusiasm because he had not seen the HR employee for such a long time was no reason for the employee to disregard the corona measures, the more because as the supervisor of the branch the employee should have set an example.
Nevertheless, the Sub-district Court annulled the summary dismissal.
According to the Sub-district Court, camera images of the incident showed that the persons behaved a somewhat cheerfully and the employer had not provided any evidence for the employee’s statement that he had corona and that he had infected the HR employee, whereas there were colleagues present who could have supported or denied it.
According to the Sub-district Court, the employee had no bad intentions and, within the employer's company, strict compliance with the one-and-a-half-meter rule, which is simple in itself, was also experienced as difficult and not always respected. Finally, also the employee's long-term employment played a role in the Sub-district Court’s decision.

The Sub-district Court did grant the conditional request for dissolution of the employment contract, submitted by the employer, because the employment relationship had been disrupted. The employer had to pay the transitional allowance, because the employee had not behaved seriously culpably.
The Sub-district Court rejected the employee's request to order the employer to pay a fair compensation of € 120,000 (on top of the transitional allowance), because the employer had not behaved seriously culpably either.


Comments

Case law of the Supreme Court shows that the personal consequences of a summary dismissal have to be taken into account when determining the urgency of the urgent reason for a summary dismissal. One major factor is a long-term employment. In that context, the Sub-district Court’s decision is understandable.
But it is difficult to understand that, on the one hand, the Sub-district Court mentioned provocative behaviour and, on the other hand, stated that the employee had no bad intentions. It also seems unlikely that the employee was so happy to see the HR employee again, who previously was responsible for the employee's punishment. But if the employee indeed would have had malicious intentions, then, in our opinion, a summary dismissal would have been the right decision, despite the employee's long-term employment.



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