Summary Dismissal for Misappropriation of Fifty Cents?

Year of publication

2015


Edition number

249


Reference

Sub-district Amsterdam, December 19th, 2014, www.rechtspraak.nl, ECLI:NL:RBAMS:2014:8731


Decision

The Sub-district Judge who, in summary proceedings, had to judge the validity of the summary dismissal of a food service company employee, who had put a € 0.50 coin in her pocket, con-sidered it more likely that this dismissal would stand up in proceedings on the substance than that it would be reversed.

A customer of a food service company who wanted to use the toilet had put a € 0.50 coin on the bar and taken the toilet key. According to the employer, the employee had put the coin in her pocket and had stated that she had not seen the coin, when a colleague asked her where she had left it. A moment later, however, according to the employer, the employee had secretly retrieved the coin from her pocket and pretended she had just found it on the bar, in order to still put it in the cash register. According to the employee, she had only put the coin in her pocket since, at that time, there was no cash register at hand and since she was busy with other work. She would not have had the intent to appropriate the coin and also states that summary dismissal is a disproportionate response.

When the employee, in interim proceedings, claims re-employment and continued wage pay-ment, the employer not only submits the testimony of the colleague, but he also uses camera images. Based on analysis of these images is the Sub-district Judge has the opinion that it is not clear why the employee did not just leave the money on the bar or put it in the cash register immediately, since there was plenty of space and it did not seem to be busy. The images, ac-cording to the Court support the colleague’s declaration, saying that the employee first would have denied to have seen the coin and that the employee only came up with the coin after she had removed it from her pocket once her colleague was out of sight. According to the Sub-district Judge, the employee’s behaviour looks sneaky and the images give the impression that the employee only put the money in the cash register because her colleague had addressed the issue with her.

The question then remains whether the incident of € 0.50 justifies the assumption of a substan-tial reason. The Sub-district Court notes that, in case law regarding this kind of trivial offences,

both a rigorous and a less stringent approach can be found. In the first case, the basis is "Theft is theft" and the point is that an employee has shown not to be fully trustworthy. This principle, according to the Sub-district Judge has extra focus when an employee’s work implies continu-ously collecting money for the employer, as is the case with the employee in question. By con-trast, there is a less rigorous approach in which it is considered that the personal impact of the summary dismissal is disproportional to the offence. The Sub-district Court has the opinion that, in this case, it is more likely that, in proceedings on the substance, the Court will opt for the rigorous approach rather than the less stringent one, since there is a relatively short employ-ment period and since the employee is still young. Therefore, the personal impact of the dis-missal will be lower. Based on this assessment of the outcome of any proceedings on the sub-stance, the application for interim relief is rejected.


Comments

The judgment of the Sub-district Court gives a good indication what it is all about in the sum-mary dismissal in a case like this. It is the confidence and trust that the employer should be able to have in an employee, especially in cases where theft would be a problem because, in relation to the work, the employee frequently has to handle goods of the employer. The latter can be a reason to regard the small size of the stolen amount as being less important. But in case of a summary dismissal the personal impact for the employee should always be considered. The older an employee is and the longer he has been employed, the higher the impact, since, in practice, it will be more difficult to find another job. In the case of a summary dismissal for theft of a small amount, the personal impact of the dismissal for the employee will be decisive, rather than in case of theft of goods of major financial importance.



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