Summary Dismissal for Working for Another Employer during Illness

An employee who had concealed from her employer and from the occupational physician that she had a second job and that she had performed reintegration activities for this second job during her labour incapacity, was summarily dismissed on the right grounds, according to the Sub-district Court,

A GGZ institution (institute for mental health care), employed a female counsellor for 32 hours per week. Due to a traffic accident, this employee fell ill In March 2020.
In April 2021, the employer asked various employees for an updated Certificate of Good Conduct (VOG) in the absence of a current and up-to-date version in the personnel administration. At that time, the employee worked for four days per week and for four hours per day and, according to the occupational physician, this was the maximum of what the employee could handle at the time. When the employee provided the employer with her VOG, it turned out to be dated October 2020, and the purpose of issuing the certificate was described as working as a supervisor at another company. Working for another employer is contrary to the applicable CLA if it is incompatible with the position or with the employer’s interests.
The employee was therefore suspended, pending the results of further investigation by the employer. Two days later, a meeting with the employee took place in the presence of the employee’s authorized representative. The employee then informed the employer that she also had worked via a temporary employment agency at the time of the traffic accident.
Since the traffic accident also made her ill for the activities via this temporary employment agency, the employment contract with the temporary employment agency was terminated. Instead, she received a Sickness Benefit from the UWV. And since, in the context of her reintegration, the UWV had imposed this obligation on her she had subsequently started working for another care institution for an average of four times four hours per week as a self-employed person via a temporary employment agency. This way, the employee would have made a total of 68 working hours in October and November 2020, but she had given up after one month, because this burden had been too high for her.
After the interview, the employer summarily dismissed the employee in writing.

The employee requested the Sub-district Court to annul the summary dismissal.
In her opinion, the summary dismissal had not been given without delay and there was no valid reason for the summary dismissal. The Sub-district Court, however, did not share this view.

According to the Sub-district Court, the employer had acted carefully and with sufficient diligence when summarily dismissing the employee. There was a reason for an investigation because the employee had stated that the employer had been acquainted with the fact that she also worked for another company. The employer also had to investigate whether it was correct that the employee was obliged to perform suitable work at another company under instructions of the UWV.
The employee had summarily been dismissed within two or three days after the suspicion had arisen that there was an urgent reason. During this period, the employee had been suspended, an investigation had been conducted and there had been a meeting with the employee. According to the Sub-district Court, the fact that the summary dismissal had not been in writing during the interview, but immediately after the interview, did not mean that the summary dismissal had not been given without delay.
True, the dismissal letter had been worded in a somewhat long-winded way, according to the Sub-district Court, but it was sufficiently clear to the employee that she had been dismissed because she had been working for another employer during her employment contract and during her labour incapacity without informing the employer or the occupational physician. This was an urgent reason, justifying the summary dismissal. During the hearing of the Sub-district Court, the employee had not managed to give a good reason for not informing the occupational physician. Working for another employer meant acting against the interests of the employer and was therefore conflicting with the CLA, because the employee could have had a workload to a maximum of 64 hours per week for both positions together.
The fact that the employer had not exactly indicated what facts and circumstances formed the basis for the summary dismissal did not mean that the summary dismissal was not legally valid in this case. It was sufficient that the facts that had been established already justified a summary dismissal themselves, that the employer had indicated that the employee would also have been summarily dismissed if he would not have had more grounds for doing so than the facts that have been established and that It also must have been clear to the employee that she would have been summarily dismissed if he would not have had more grounds for doing so than the facts that have been established.
According to the Sub-district Court, the personal consequences of the dismissal were not of such a nature that they would not have provided an urgent reason. The Sub-district Court pointed out that it is generally known that health sector employers suffer from a significant lack of personnel.
The Sub-district Court also held the opinion that the employee had acted seriously culpably and that she was therefore not entitled to the transitional allowance. Not granting the transitional allowance was not unacceptable according to standards of reasonableness and fairness either, so the Sub-district Court decided, so that the employee would not even be entitled to the transitional allowance in whole or in part for that reason.

In principle, an employee has, of course, the right to perform other work in addition to an employment contract, especially if this employee doesn’t have a full-time job. And in principle, an employee does not have to report the existence of this other work to the employer, although it could be argued that the employer has the right to know it in order to be able to comply with the Working Hours Act on the maximum number of weekly working hours. In the above case, however, there was a CLA-provision, prohibiting the employee from performing other work if might affect the employer. The maximum size of the other job meant that this was the case. Of course, the employee should in any case have discussed with the occupational physician that she was also involved in a reintegration process with the other employer, since this was of importance for the number of hours the employee could work during illness.
As of August 1, 2022, a legislative amendment, implementing a European Directive, will become effective. One of the consequences of this amendment is that ancillary activities will no longer be prohibited, unless there is an objective justification for such a prohibition. Such objective justifications may include health and safety reasons, protection of confidentiality of business information, the integrity of government services and the avoidance of conflicts of interest.
It offers the possibility that ancillary activities that could imply that an employee might work up to 64 hours per week may still be prohibited, however, because in that case the employee's health could be at risk and because it would violate the Working Hours Act.