Summary Dismissal for Incorrect Notification of Illness

Year of publication

2014


Edition number

240


Reference

Sub-district Enschede, 8th April 2014, www.rechtspraak.nl, ECLI:NL:RBOVE:2014:1830


Decision

An employer rightfully summarily dismissed an employee, who falsely notified of illness.

At a childcare centre in Hengelo, an employee worked as a childcare worker. On 6th January 2014 the employee reported ill via a WhatsApp message saying that she had gone to the hospital the night before to have an appendectomy, When the employer inquired at the hospital in which room the employee was hospitalized so as to send her some flowers it turned out, how-ever, that the employee had not been hospitalized at all. The employer then tried to contact the employee, but she did not answer her phone, did not respond to messages and did not open the door of her home. By letter of 10th January 2014, the employer announced that he would discontinue paying the wage as per 6th January 2014. When, on top of this it also turned out that, on 8th January 2014 the employee was observed in Germany, and when the employer was informed by her relatives that she resided in Texel, the employee summarily dismissed the employee by letter of 16th January 2014.
The employee alleged nullity of the summary dismissal and claimed admission to the work and continued payment of salary in interim proceedings. She submitted a letter from her GP saying that the employee had visited her GP in January 2014 for overstrain complaints and that the assistant GP had discussions with her because of the mental problems. It was this overstrain that should justify the fact that she had been inaccessible for a few days
The Sub-district Court states that the incorrectness of the notification regarding the hospitalization for an appendectomy might be strongly counted against the employee. By doing so she seriously damaged the employer’s trust. Given the incorrectness of this notice, there was no reason for the employer to have the illness verified by the occupational health physician, as the employee had stated. The Judge sees no reason in the minimalist statement of the GP to conclude that the mental state of the employee on and after 6th January 2014 was so serious that her conduct can not be counted against her. The Sub-district Court does not consider it very likely that in main proceedings the summary dismissal will not sustain and therefore rejects the claim for continued payment of salary as an injunctive relief.


Comments

Disputes as to whether the employee is ill or not, in principle, do not result in loss of employment, but should be resolved in the context of whether the employee is entitled to wages during illness or not. In exceptional cases, however, a summary dismissal is still possible. In such case there should be more to it than a discussion on the question whether the employee is ill or not. In the present case, it was clear that the employee had seriously harmed the employer’s confidence by an incorrect notification of illness For the Sub-district Judge this was sufficient reason to justify a summary dismissal.



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