Summary Dismissal for Doing Odd Jobs during Illness

After an investigation agency had confirmed that an employee had been doing odd jobs in his home during his illness, -which also showed that he had lied about the limitations resulting from his illness-, the employee was rightfully summarily dismissed

A mechanic, working at an installation company, fell ill in March 2021.
One year later, when the first-year evaluation was made, it revealed, among other things, that the limitations resulting from his illness prevented the employee from driving a car. Likewise, the employee was limited in walking, pushing, pulling, lifting, carrying, kneeling, squatting, standing and regularly changing position. Nonetheless, one of the employees saw the mechanic driving a car shortly afterwards. When, subsequently, the employer sent someone to drop by the mechanic's home, it turned out that the mechanic was doing odd jobs there. Then the employer decided to hire an investigation agency. For three days this agency made observations using a camera from a car. When asked by the employer, the mechanic denied that he could drive a car. Then the employee was summarily dismissed.
When the employee challenged the summary dismissal, the Sub-district Court first of all ruled on the employee's complaint that his privacy had been violated.
The Sub-district Court, however, was of the opinion that the privacy had not been violated, because the employer's interest in finding out the truth about the employee's statements about his limitations outweighed the employee's right to privacy. The Sub-district Court considered it of importance that the impact of the infringement had remained limited, since:
• the camera could only be controlled within 150-200 meters of the investigator’s vicinity of the car;
• images were only made when the employee was doing odd jobs at the house;
• no pictures were taken of the employee's family members;
• the investigation had not been disproportionate because it had only lasted three days;
• there was no less severe way for the employer to find out the truth, since the employee was suspected of having lied, so that having a conversation with the employee was no option.

The employee had argued that he had only performed odd jobs that he could do within the scope of his limitations, but, the Sub-district Court deduced from photos in the investigation report that this was not right. According to the Sub-district Court, the employee's statement that he could only drive a car with an automatic car gear system did not preclude the summary dismissal, since, in hat case, the employee should have informed the employer that it was possible for him to drive an automatic gear car. Then the employer might have offered the employee an automatic gear car to come to the company and perform suitable work.
The fact that the employee had lied about his limitations is an urgent reason for a summary dismissal, according to the Sub-district Court.

There are cases where judges decided that having an employee tracked and monitored by an investigation agency constitutes a seriously culpable act on the part of the employer, as a result of which the employer was obliged to pay fair compensation to the employee. Whether an employer is authorised to engage an investigation agency to track and monitor an employee depends on the circumstances. In the above case, the Sub-district Court found it justified because there were indications that the employee had lied.
Whether the investigation by an investigation agency subsequently constitutes an invasion of the employee's privacy depends on
- whether the employer has a legitimate purpose for tracking and monitoring the employee, such as the suspicion that the employee is lying about his limitations,
- whether the investigation by the investigation agency does not disproportionally result in an invasion of the employee's privacy and
- whether there is a less severe way to achieve the employer's goal than giving an assignment to an investigation agency.
In case having an investigation agency track and monitor a person would constitute an invasion of his/her privacy, this does not imply that any evidence that the investigation may provide is not admissible. The Supreme Court has ruled that the importance of finding the truth outweighs the invasion of privacy. In that case, however, the employee is entitled to claim compensation from the employer