Summary termination because of hemp cultivation in employee’s home

Year of publication

2012


Edition number

206


Reference

Sub-district Zwolle, January 10th 2012, www.rechtspraak.nl, LJN: BV1755


Decision

An employee in whose home hemp cultivation was discovered could be dismissed by the em-ployer because there was an adequate connection between the offence and the job.

In an IT services company an employee has been employed as a "junior network engineer” with an (extended) fixed-term contract since February 1st 2010. On November 16th 2011 the police found hemp cultivation in this employee’s home with over 100 plants. On the day of the raid by the police the employee immediately left work and went home. When, two days later, at the request of the employer, the employee confirms that hemp cultivation was found at his home, the employer immediately fires him. The employer points out that the staff hand-book states that employees should refrain from actions that undermine the employer’s reputa-tion and that violation of this prohibition may create a substantial reason for summary dismis-sal. The employer also points out the importance of unimpeachable conduct of its employees as these employees have access to all confidential business information of clients. The em-ployee challenges the dismissal arguing that the offence is not work related.

It comes to a lawsuit at the sub-district court in which the employee, by way of transitional provision, claims re-employment and continued salary pay. The district court first points out the framework within which he has to judge the employee’s claim. This framework implies that the Magistrate can only grant the claim when there is plausible evidence that the em-ployee’s claim for salary will stand in main proceedings. The burden of persuasion lies with the employer, who has to provide the evidence within the limited context of interim proceed-ings, in which witnesses can not be heard. The Magistrate considers the employer successful in this respect. The offence was acknowledged by the employee and thus is a fact. The number of plants found exceeds the amount needed for private use and, when asked, the employee refused to provide further details about his illegal additional activities, so it is unclear to what extent the employee is involved in the criminal scene. There is a connection between the of-fence and work, because the employee works with sensitive information of clients, including organizations that are related to judicial institutions, such as a youth welfare institution, an organization for child care service and a company engaged in buy-outs. It is clear, so the Magistrate states, that these companies will not appreciate if the employer would set an employee to work with them who contravenes ethical and socially accepted behaviour, such as commercial hemp cultivation. Since it remained unclear to what extent the employee has been involved in the criminal scene the risks arising there from can not be assessed. The Magistrate considers that the employer is not to blame for the employee’s blameworthy behaviour and rules that the employer can not be expected to set his customers’ interests lower than the em-ployee’s and therefore accepts the risk that his customers will break the relationship with him. The Magistrate further judges of importance that it is mentioned in the staff handbook that the employer requires unimpeachable conduct from his employees, that the employment contract lasted for a short time only, that the employee is 39 years old and that the employee does have new chances in the labour market since the employer also invested in his knowledge and expertise. The employee’s claims are therefore rejected.


Comments

Dismissal for committing an offence is only possible if there are additional circumstances, in particular the existence of a relation between a criminal offence and the job. The ruling of the Magistrate shows that this relation not necessarily implies that the offence was committed during work.



Leave a comment


Name: *
E-mail address: *
Your comment:
Fill in the code: *


Reactions


No comments.