Dismissed for Failure to Comply with the Employer’s Covid Rules

After a very successful thirty-year employment contract, an employee was dismissed for his failure to comply with the Covid rules, laid down by the employer. An appeal to his right to free expression was of no avail to the employee who, as a matter of principle, disagreed with the government's covid rules.

Since 1991, an employee had been working for a globally operating shipping company, for which he internationally concluded contracts. The employee had worked his way up to a membership of the board of directors. He earned a gross salary of over EUR 4,000 per month, but on top of that he was entitled to a fixed bonus of almost EUR 10,000 gross per year and a variable bonus that amounted to over EUR 200,000 in 2020.
In January 2021, the employee received an official written warning from his supervisor and was suspended for a number of days, with retention of salary, because he did not comply with the Covid rules the employer had laid down.
The employee had travelled to the United States, which country was on the code red or the code orange list at the time, and to Belgium without the required permission, he had repeatedly discussed the existence of the covid-19 virus with colleagues and customers, also in his e-mails, he had approached colleagues and customers with outstretched hands to shake hands, he had refused to comply with the current instructions, in particular as regarded travelling, and he had given inadequate attention to be paid to managing his department.
After the suspension, the employer had invited the employee by letter to draw up a plan on how to regain the trust of colleagues and senior management. Since the employee failed to do so, he was informed in a second writing that employment-law-related measures would be taken if this failure was to be repeated.
In October 2021, the employee sent an e-mail to a Canadian business associate, stating that in his view the decision of the Canadian authorities to make vaccination compulsory was a criminal act and that the business associate was an accessory.
Then, the employee was fully discharged of his duties. The employer offered him a very last chance, be it under the condition that the employee would resign from the board of directors, would give up a position as director at another company and would send a letter of apology to the Canadian business partner. The employee's authority to independently conclude contracts would also be terminated and he would be obliged to coordinate his day-to-day business with a supervisor. When, in response, all the employee wanted to do was, to discuss matters related to the covid pandemic with the employer, he was given the last opportunity to agree to the employer's proposal, where the proposal was even amended in the sense that he would not have to resign from the board of directors and as director of the other company himself, but that he would be dismissed as such by the general shareholders’ meeting. When the employee refused to accept this latest proposal, the general shareholders’ meeting dismissed him as a member of the board of directors and as a director of the other company. Since, however, the employee was employed by a legal entity other than the legal entities of which he was respectively a member of the board of directors and a director, the dismissal did not yet terminate his employment contract. That is why a request to dissolve the employment contract was submitted to the Sub-district Court.
From the events that had taken place, the Sub-district Court concluded that the employer was unable to deny that the employee's personal views about the covid rules had influenced his performance. Not only did the employee disagree with the measures taken by the employer, but he also regularly did not comply with them. The Sub-district Court judge called the actions of the employee head-strong. Of course, the employee was entitled to the freedom of expression, but that did not mean that the employer could not expect him to refrain from continuously raising his outspoken views about the covid rules, and certainly not externally. There had been no question of a prohibition on the employee’s freedom to express his opinion in private.
According to the Sub-district Court, things went well for a while after the suspension and the official warning, but, in the opinion of the Sub-district Court, the e-mail to the Canadian business associate was completely alien to any standard of decency, unacceptable and contrary to the principles of being a good employee.
Considering the earlier explicit warning, termination of the employment contract was justified. Since, in the opinion of the Sub-district Court, the employer was not at fault in this respect, the fair compensation of over EUR 3.5 million, claimed by the employee, was rejected. On the other hand, the employee was entitled to the transitional allowance of over EUR 250,000, because the employee had not behaved seriously culpably. The Sub-district Court took the view that the employee had acted on the basis of a deeply felt conviction from which he could not distance himself and that the employee had had a unproblematic, even very successful employment relationship for thirty years.

The decision of the Sub-district Court illustrates how the covid pandemic has divided society. In the above case, it brought an end to a very successful employment relationship. The employee apparently could not distance himself from his strongly lived-out views on covid-19 during his work and it eventually tore him apart. The employee had invoked the right to freedom of expression, but this right is not unlimited and the interests of the employer may imply that the employee has to observe restrictions in expressing his opinion. Of course, the right to freedom of expression was no justification whatsoever for failing to comply with the employer's instructions.