Dismissal for Sexual Affair with Subordinate’s Wife

An employee's employment contract was terminated for seriously culpable behaviour, because not only had he entered into a sexual relationship with a subordinate’s wife, but also because, subsequently, he had tried to persuade the subordinate, who had reported ill, on improper grounds, to resume work. But also because the employee had used the business telephone to send messages of a sexual nature and because he had spent working time to maintain the relationship.

Since 1985, a currently 61-year-old employee had done work for a supplier of professional automotive and industrial paints in the position of the commercial director. He earned a gross salary of almost € 12,000 a month. The employee was responsible for the sales activities and was the supervisor of 15 to 20 sales and technical employees. One of these employees was an account manager who had been employed since April 2021. The account manager’s wife worked as a receptionist for one of his clients. On February 13, 2022, when the wife announced that she wanted to divorce her husband, the latter reported ill on February 14, 2022.
On February 20, 2022, the account manager discovered WhatsApp messages on his and his wife's shared laptop, revealing that the commercial director and his wife had been sexually involved between September 4, 2021 and October 14, 2021. The account manager informed the employer of this fact. The WhatsApp messages contained sexually explicit texts, nude pictures and video images of sexual activities. The number of WhatsApp messages indicated an intensive contact: it involved 726 messages within a nine-day period. They also revealed that the commercial director and the account manager’s wife had met each other in order to have sex in a cottage or in a hotel for two to three hours on five Friday afternoons.

When, on February 20, 2022, the account manager informed the commercial director via WhatsApp that he would stay at home for a few more days because he was at the end of his tether, the commercial director insisted on an early work resumption, while alluding to the possibility that otherwise the account manager’s employment contract might not be extended.
On February 21, 2022, the employer suspended the commercial director.
When consultations on termination of the employment contract by mutual consent did not yield results, the employer submitted a petition to the Sub-district Court to dissolve the employment contract. According to the employer, the commercial director had acted seriously culpably and the employment relationship had been disrupted.
The commercial director attacked head on. He stated that the sexual relationship was a private matter and he requested the Sub-district Court to grant him a fair compensation of no less than 2.5 million euros for the seriously culpable way in which the employer had handled the complaint made against him.

The Sub-district Court, however, had a quite different view, and held the opinion that there had indeed been culpable conduct, justifying dissolution of the employment contract. But the Sub-district Court accused the employee that he had maintained a sexual relationship with the wife of a subordinate, that he had exchanged an excessive number of WhatsApp messages with the woman during working hours by means of the business telephone, resulting in significantly less effective working time, and that he had exerted undue pressure on the account manager.
As a result, the employee had acted in violation of the employer's code of conduct, which was based on sincerity, honesty, reliability and respect for the other and which stated that intimidation in the work environment should be prevented, that abuse of others through manipulation was not allowed and that company assets should not be used for inappropriate or illegal purposes. Thus, the sexual relationship had ceased to be a private matter.
But even without the code of conduct, according to the Sub-district Court, it should have been clear to the employee that abusing his position by persuading the employee on spurious grounds to resume work and using the company's mobile phone to receive and send messages of a sexual nature, would result in termination of the employment contract. The Sub-district Court also accused the employee of lack of insight that his behaviour was unacceptable, by persisting in his statement that it was a private matter.
Since it was not just culpable behaviour that justified dissolution of the employment contract, but also seriously culpable behaviour, the Sub-district Court dissolved the employment contract without taking the notice period into account and did not grant the employee the transitional allowance. The fair compensation the employee had claimed was rejected, because the course of events surrounding the intended termination of the employment contract had not been culpable.
Furthermore, the employee also had to repay the employer a gross amount of € 1,000 in wages, because the employee had sent and received 1261 WhatsApp messages during working hours in nine days’ time and because he had made five appointments in a hotel or cottage during working hours.

Usually, affective personal relationships in the workplace create a difficult problem for employers. On the one hand, it is a private matter, whereas on the other it may disrupt hierarchical or peer relationships in the workplace. If that happens, the judge has to assess whether it is the private nature of the relationship that should prevail or its influence on the work. In the above case, the fact that the commercial director had abused his position as a supervisor to persuade his subordinate to resume work by suggesting that otherwise his employment contract would not be extended, the use of the employer's telephone for inappropriate purposes and the fact that the WhatsApp messages were frequently exchanged during working hours, ensured that the Sub-district Court had sufficient arguments to refute the employee's appeal to the private nature of the relationship.