Termination contract employee for love affair with colleague’s wife

Year of publication

2012


Year of publication

205


Reference

Sub-district Haarlem December 21st 2011, www.rechtspraak.nl, LJB: BU9411


Decision

An employer, who wanted to repudiate the employment contract with an employee because an unworkable situation had arisen after this employee had started a relationship with a colleague’s wife, had to pay a severance pay to this employee.

This decision, the Haarlem district court reached in the case of a company dealing with revision of existing organs. In May 2009 a 29-year-old employee entered employment there, who became friends with the Head of Maintenance who had already been employed there since 1993. This friendship resulted in the employee starting a love affair with his colleague’s wife. The tensions this created resulted in the employee reporting ill on January 25th 2011. The company doctor then finds that the symptoms and limitations that the employee claims are not based on a disease or defect, but are related to the workplace situation. It is nor until August 23rd 2011 that the employer takes action. He then writes a letter to the employee in which he highlights the unworkable situation and calls on the employee to terminate the relationship with the colleague’s wife, failing this a dismissal procedure will be initiated.

The employee (of course) does not end the relationship and this leads to a procedure at the sub-district court in which the employer requests to terminate the employment contract. The Magistrate first starts by saying that in principle the employer should not interfere with the private lives of its employees, but that, nevertheless, the employer may pursue the termination of employment contract when personal circumstances of the employee (may) severely damage proper performance of the labor agreement and reasonably no other solutions are available. Since employees of the organ company work closely together in a small team of specialist, where the colleague is responsible for the entire process and the employee is regularly deployed in the implementation of a project, the Magistrate considers that there is solid reason for terminating the employment contract.

Regarding the question whether the employee, in respect of the dismissal, is entitled to compensation payable by the employer, the district court considers that it is the employee who created the unworkable situation by starting a relationship with a colleague’s wife and thus took the risk that effects on the employment relationship might arise. The Magistrate, however, also considers that it is of the employer’s risk if a private event affects the employment relationship because it is the employer who requires very collegial relationships in order to have the work done at the required level. Even though the Magistrate finds that the employee should have tried to stay "on speaking terms" with his colleagues he concludes that for the situation arisen neither the employer nor the employee can be blamed. The Magistrate grants the employee a gross compensation of € 3.500.


Comments

The granted severance pay was obviously not very high, but is in line with the sub-district court formula applying correction factor 1. When the sub-district court would also apply this principle for older employees and/or for employees with a longer employment, the employer would have to pay a potentially significant severance pay to the employee. We put a question mark to the district court’s standpoint that there is a so-called "neutral" dissolution. In par-ticular we don’t like the argument that it is the employer who requires very collegial relation-ships in order to have the work done at the required level. Does not every employer want col-legial relationships and does not every employer want the work to be carried out at the re-quired level? Even if this case was special in this respect, did not the employee know this when he began a love affair with the colleague’s wife and thus accepted the predictable risks that his employment contract might be terminated because of an unworkable employment relationship? In our opinion, the employer is wrongly judged by the sub-district court on the predictable consequences of the employee’s behaviour without the employer having any opportunity to influence this behaviour.



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