Summary Dismissal Three and a Half Months after Suspension is still “without Delay”

The Sub-district Court ruled that a summary dismissal that was given more than three and a half months after a suspension was still “without delay”, because a careful investigation into the urgent reason for the summary dismissal had to be carried out first, and the decision-making process on the summary dismissal had to done internationally.

Since 2002, a -now- 42-year-old employee, member of the management team and responsible for the employees of the sales department had been working at the Dutch branch of an group of companies which are internationally active in the sale of consumer products. In 2019, the employee had already been questioned about his way of interacting and his behaviour, after he had made inappropriate remarks and shown an inappropriate video to a trainee.
At the time, the employee had received a verbal warning for it.
During his holiday in August 2021, several employees, working in the sales and marketing department, turned to the company’s HR officer, complaining that they felt unsafe at work as a result of their manager’s behaviour.
According to them, he spread pornographic and/or derogatory photos and videos, intimidated, bullied, manipulated and talked excessively about his private life during working hours. Whenever the employees told him that they didn’t appreciate it, this resulted in retaliatory measures.
On October 8, 2021, the employee was suspended and invited for a discussion. This discussion took place on October 13, 2021. The employer informed him that a specialized investigation agency was going to conduct an investigation.
This investigation took two and a half months. The final report was published on 14 January 2022. The investigators had observed that the employee had not or hardly denied the allegations, but also that he had not taken responsibility for his own behaviour. Instead, he referred to a context which, in his opinion, implied that he there was nothing serious to reproach him for. However, the investigators were of the opinion that the employee thereby had failed to recognize his responsibility as a manager. They recommended appropriate measures against the employee, a discussion on a desired culture change with the employees and the appointment of an external confidant.
Following the outcome of the investigation, the employee was summarily dismissed on January 31, 2022, after which a letter of dismissal was sent to him on the same day.

The employee submitted a petition to the Sub-district Court to annul the summary dismissal, but at the hearing he changed his position and he no longer demanded the employment contract to be brought back into force, but instead he asked to pay him a fair compensation of over € 170,000, a compensation for the unlawful termination of the employment contract of over € 26,000 and a transitional allowance of over € 43,000.
The Sub-district Court, however, held the opinion that the summary dismissal was legally valid. A number of WhatsApp messages with photos of genitals, submitted by the employer, provided sufficient evidence for the Sub-district Court for the existence of an urgent reason. The Sub-district Court pointed out that the employee was a member of the management team, that he had a managerial responsibility, and that such behaviour between a manager and subordinates could not be tolerated. Given the dependent position these subordinates found themselves in, it had been impossible for them to simply stop the employee's behaviour without getting an unequivocal rejection. Given the employee's good preliminary education and his relatively young age, the personal consequences of the dismissal were also insufficient reason for a different judgement on the urgency of the reason for the dismissal.
The dismissal was also given without delay, according to the Sub-district Court.
The Supreme Court’s case law holds that the employer is given some time to conduct an investigation, to obtain expert advice and to convene the body authorized to dismiss, as long as they demonstrate significant activity. According to the Sub-district Court, the investigation by the investigation agency had not taken too long, given the seriousness of the accusations, the sensitivity of issues relating to transgressive behaviour in the workplace, the damage that careless action would cause for the employee, and the need to take the position of the victims into account.
The decision-making process related to the dismissal had not taken too long considering the fact that the decision-making had to take place abroad. The Sub-district Court also considered it of importance that the employee had already been suspended and, therefore, should have taken the probability for dismissal into account since then.

The question of whether the summary dismissal was given without delay and whether the employee was also immediately informed of the urgent reason for that dismissal must be assessed according to the circumstances of the case.
From the moment that the suspicion of the existence of the urgent reason comes to the attention of the person authorized to grant the dismissal, the employer should act energetically. In the above case, both the investigation and the decision-making on the dismissal had taken quite some time. In the circumstances of this case, according to the Sub-district Court, this was still justifiable. Often, however, a summary dismissal needs to be given much more quickly and should not take more than just a few days.