An employer was denied approval to summarily dismiss an employee who had insulted a colleague in an outburst of anger, because he had failed to warn the employee in writing on previous similar occasions.
For 15 years, a now 60-year-old employee had been working at a wholesale company as a senior sales representative. On February 8, 2022, the director and the employee’s supervisor addressed him about an incident that had taken place on February 5, 2022.
On March 15, 2022, the employee had a discussion with his supervisor about the work load he perceived as too high.
On May 6, 2022, the employee was approached by his supervisor by telephone about the fact that he had calendared empty appointments, as a result of which colleagues were unable to enter appointments with customers in his agenda. After this phone call, the employee aired his frustration against a colleague who made a comment. During this outburst he also used several epithets. Then the employee was suspended and subsequently fired.
In the dismissal notice, the employer wrote that the employee had smashed the door of the office space where the colleague had fled in search of a safe place and that he had insulted this colleague saying "back stabber, fucking bitch, piece of shit, show your real face and you want my job, eh, don’t you”. The employer dismissed the employee for intimidating and aggressive behaviour and pointed out that he had earlier addressed him about similar behaviour on 8 February 2022 and that he had received a warning then.
The employee invoked the annulment of the summary dismissal, but at the hearing of the Sub-district Court he withdrew the request and only asked for financial compensation. The employee acknowledged his abusive language and that he had expressed himself in an unreasonable way, but he denied the intimidating and aggressive behaviour and the fact that he had smashed a door. He attributed his behaviour to stress problems due to the excessive work load and said that he had apologized to his colleague.
The Sub-district Court noted that the employee had treated his colleague unfairly by verbally expressing his frustration against her and severely insulting her. According to the Sub-district Court, such behaviour is unacceptable, but does not justify a summary dismissal, even if it was correct that his colleagues had fled from him and had become upset. The Sub-district Court blamed the employer for never having given an official warning on previous occasions when the employee lost his temper. The verbal warning of 8 February 2022 was not enough. It may have given the employee the impression that his behaviour was deemed not too serious.
The Sub-district Court also found it plausible that the outburst was related to stress problems, which problems had been known to the employer. In view of the long-term employment, the age and the far-reaching consequences of the dismissal, the employer should not have gone further than a disciplinary sanction or an official warning.
As a result of the Sub-district Court’s decision, the employer had to pay the salary over the notice period, the transitional allowance and a fair compensation of € 7,500.
The amount of the latter compensation was based on the following considerations:
• The employer can be seriously blamed for the wrongful summary dismissal.
• In the meantime, the employee has found himself another job, be it for a lower salary and less security.
• The employment contract would not have terminated in the short term. A request for dissolution would have been rejected because the employer failed to build up a file.
• The employee's behaviour was unacceptable and can be imputed to him.
The Sub-district Court also took the duration of the employment contract into account as well as the transitional allowance and the fixed damages already to be paid for failure to observe the notice period.
We are somewhat flabbergasted by this decision of the Sub-district Court. If the employee really behaved as the employer described it (and if there is any doubt, the employer should be given the opportunity to prove it), then, in our opinion, it can only be regarded as culpable behaviour, justifying termination of the employment contract. In that case there is no need for the employer to build up a file. It is enough that the employee can make it clear that the employee’s behaviour was unacceptable. The Court’s statement that this may not have been clear to the employee in the absence of official warnings seems far-fetched, especially in view of the recently given verbal warning (of which the employer should also be given the opportunity to provide evidence, if necessary).
Especially from a sales representative, whose business results depend on successful contacts with other people, it is not unreasonable to expect that he would have had a different attitude towards his colleagues.