No Dismissal for Labour Incapacitated Employee who Persists in Exaggerated Complaints

No Dismissal for Labour Incapacitated Employee who Persists in Exaggerated Complaints
Date: 13-11-2022
Year of publication en number of publication: 2022 / 483
Reference: Court of Appeal of Arnhem-Leeuwarden, 28 October 2022. ECLI:NL:GHARL:2022:9231

In a lengthy and complex dispute between an employer and a labour incapacitated employee about the latter's reintegration, the Court of Appeal decided that the fact that the employee steadfastly clung to ever more employment restrictions beyond the ones last found by the occupational physician, did not justify dissolution of the employment contract.

As of 1991, a bus driver had been working for a public transport company for 36 hours per week. Initially, the bus driver had been employed by another company, but he joined his current employer as a result of the transfer of the licence to provide bus transport.
For the first time, the employee had protractedly been absent due to knee complaints In 2009. When he resumed work, for 32 hours per week, he made early shift trips on Mondays, Tuesdays, Thursdays and Fridays only.
In 2012, the employee fell ill again for a long period, be it due to other complaints this time.
When he applied for a WIA benefit in 2014, the UWV rejected the application because the employee was considered to be less than 35% incapacitated for work. The UWV considered the employee unsuitable for his work as a bus driver for 36 hours a week, but suitable for his adapted work for 32 hours a week, as he had done until he reported ill in 2012.
In 2015, the employee resumed work for 32 hours per week, based on the UWV insurance doctor’s advice, which stated that, due to his knee complaints, the employee should refrain from working one day after every two working days and that early shift trips would be more suitable for the employee, because his knees would suffer less that way.
When the employee asked the UWV for a reassessment in 2018, the UWV insurance doctor decided that there were no restrictions regarding the working hours. Later in 2018, the employee fell out due to long-term illness for the third time. Then, the employer refused to comply with the employee's request to adjust the employment contract from 32 hours per week to 30 hours per week, in early and uninterrupted shifts only.
In June 2019, after work resumption in January of the year, the employee fell ill for the fourth time. This time due to heart complaints.
In June 2020, the occupational physician considered the employee labour capacitated for 32 hours per week, making early shift trips only, a free day after every two working days and, if possible, every hour a moment to stretch his legs or to switch between sitting, standing or walking. An occupational examination, subsequently showed that these limitations would even make adapted own work possible. In the end, it came to a partial work resumption in January 2021.
The employee, however, rejected the employer’s offer to discuss a sustainable solution for the employability of the employee by means of mediation.
In February 2021, the occupational physician determined the employee's current employability. He believed that the employee should have the opportunity to regularly switch between sitting and walking, but he did not see any restrictions with regard to the working hours.
In May 2021, the employee fully resumed his work, following a schedule that was no longer based on morning shifts only. In the absenteeism registration, however, the employer still had the employee registered as being 10% incapacitated for work. When, in June 2021, when the employee invoked his entitlement to work early shift trips on Monday, Tuesday, Thursday and Friday, with sufficient opportunities to stretch his legs again, the employee was reassessed by the occupational physician. The occupational physician maintained his previous judgment about the employability of the employee. An occupational examination showed that the work that the employer had assigned to the employee was appropriate. The employee also received his employer’s permission to depart from the bus stop a few minutes later if it was needed for sufficient exercise.
When the employee reported sick again in July 2021 due to knee complaints, he was examined again by the occupational physician, who again determined that the employee should have the opportunity to stand or walk for at least five minutes after every hour of sitting. Due to the lack of clarity as to whether the own work could be carried out with adjustments and whether sufficient adjustments were offered, the occupational physician advised the parties to enter into a discussion, involving the occupational health expert.
In the discussion that followed, the employer reproached the employee for not departing on time from the bus stop and he proposed to terminate the employment contract. In order to give the employee the opportunity to think about the termination proposal, he was exempted from work. The employee rejected the proposal, however, and claimed an early shift schedule. This request was rejected by the employer. Once again, an employment expert concluded that the transport services for which the employer had scheduled the employee were in line with the employee's employability.
In August 2021, the employer hired a detective agency to investigate whether the knee complaints the employee suffered from corresponded to what he had reported sick for.
In October 2021, the employer offered the employee a last chance to resume work on all shifts the employer would schedule him for. When the employee declined this offer, the wage payment was discontinued in November 2021. Without the employer knowing, however, the employee had been admitted to hospital in 2021 for fibromyalgia.
In February 2022, the occupational physician determined that the employee could not independently participate in traffic any longer.
Both parties then applied to the Sub-district Court, where the employee claimed continued payment of the wages and the employer requested dissolution of the employment contract. Both the employee's claim and the employer's request were rejected by the Sub-district Court, but both parties lodged an appeal with the Court of Appeal. The Court of Appeal then awarded the employee's wage claim but did not dissolve the employment contract, considering the following:

The employer's assertion that the employee was no longer entitled to sick pay “because the maximum period of 104 weeks in which the employer is obliged to continue to pay wages had already expired in 2014”, was rejected because the employee could rely on the fact that the work for 32 hours per week had become the new contracted work, as no reintegration efforts had been made any more to have the employee work for more than 32 hours.
Contrary to the Sub-district Court, the Court of Appeal held the opinion that a new period of 104 weeks had arisen in 2021 in which the employer had to continue the sick pay, because in 2021 the employee had worked the full 32 hours per week for more than four weeks. The fact that the employer had still registered the employee 10% incapacitated for work during this period e because of his -and also the employee’s- doubts about the sustainability of the recovery, was not relevant, according to the Court of Appeal.
After he had reported sick in July 2021, the employee was entitled to wages, because the advice of the occupational physician did not necessary imply that he considered the employee capacitated to resume work. As for the employer's opinion that the employee had exaggerated his complaints, the Court noted that a medical examination was missing, showing what the employee was capacitated for in July 2021. Besides, the employee’s restrictions had increased in October 2021.
Since it follows from the above considerations of the Court that the incapacity for work had lasted less than two years, the prohibition of termination during illness applied. Therefore, the Court of Appeal investigated whether the employer's request for dissolution was based on circumstances that were not related to the illness. This concerned notably the question of whether the employee had rightly insisted on being unable to perform services other than the morning shifts. The Court showed some degree of understanding for the employer's view that the less popular interrupted shifts should fairly be distributed among the employees and that he could not make a planning with morning shifts only without a medical necessity, but it stated that, on the other hand, there was no evidence that making such a schedule was not possible. The detective agency's report did not show that the employee had intentionally misrepresented his restrictions. Furthermore, the occupational physician did not give his opinion on the employee's employability on the basis of the facts established by the detective agency. According to the Court, emphasizing the importance of morning trips did not constitute culpable behaviour that would justify termination of the employment contract.
According to the Court of Appeal, the fact that the employee had performed prohibited ancillary activities was no reason to dissolve the employment contract either. The employee had a business where he traded in used cars and where he rented a motorhome. Under the new regulation regarding the ban on ancillary activities, which came into effect on 1 August 2022, the employer should have put forward an objective justification for this ban, which he had not done. In the past, the employer had given his permission to engage in the car trade. It has not been demonstrated that those activities had expanded to such an extent that it had hindered the employee’s employability.
The late departure from the bus stop was not culpable either, since the employee was given permission to do so. If the employee had spent too much time for it, it would have been up to the employer to indicate more precisely how much delay the employee was allowed to have.
According to the Court of Appeal, the disrupted employment relationship was mainly due to the accusation of departing from the bus stop too late and the involvement of the detective agency. Since the employer had made no attempt to improve this deteriorated relationship, the disrupted employment relationship was no reason to terminate the employment contract.
Finally, according to the Court of Appeal, there was no question of a combination of different grounds for dismissal either, that separately would not have given sufficient justification for dissolution of the employment contract, but added together they would.


are usually very complex. Employers would do well to seek advice on it in good time. Since many important facts are quite often already established once the dispute arises, it is in practice important that the right measures are taken and the correct written records are made from the very start. Case management expertise can play an important role in this. In the above case, a different outcome would have been conceivable if the employer had taken the right measures in good time. Clarity about the question of whether working for 32 hours per week would be considered as suitable work or as newly contracted work might have implied that 104 weeks of sick pay would not have to be paid twice.
Furthermore, it should not be overlooked to criticize the decision of the Court of Appeal.
For example, there is reason to doubt the correctness of the Court's consideration that there was no medical examination showing what the employee was capacitated for in July 2021. The decision of the Court of Appeal was vitiated by the fact that the occupational physician had drawn up an employability profile for this purpose.
It is also not quite clear why the Court of Appeal considers it of importance that timetabling was only possible during morning shifts, whereas it had already been established that there were no limitations in that regard. The Court clearly disagrees with the involvement of a detective agency, but the agency report was not relevant for the establishment that the employee could also work shifts other than morning shifts only and that it should therefore not be important that the occupational physician has no longer based his decisions on the employee's employability on the facts that were established by the detective agency.
It is not obvious, that the employee’s ancillary activities could ever justify a dissolution of the employment contract after the employer had previously approved them. But the decision of the Court of Appeal in which an objective justification would be required for invoking the prohibition of ancillary activities, whereas it concerns facts that took place before the introduction of this requirement on 1 August 2022, seems to be contrary to the fact that this amendment to the law, although immediately effective, does not contain a provision on its retroactive effect. The ban is therefore only relevant for ancillary activities performed as of 1 August 2022.