Dismissal of Frequently Absent Employee for a Combination of Culpable Behaviour and a Disrupted Employment Relationship

Even though the legal conditions for dissolution of the employment contract for culpable behaviour or for a disrupted employment relationship were not met, the Sub-district Court dissolved the employment contract for a combination of both grounds.
A company in the Port of Rotterdam, involved in the handling and warehousing of chemical substances, fuels and oil, employed an employee in the position of an “operator”.
Ever since he had joined the company, in 2017, the employee had been frequently absent due to illness. With one exception (as a result of a car accident), it always concerned short-term absenteeism, but always for at least a number of days.
In 2021, the employee had been away for a longer period of time, due to psychological complaints, increased by the fact that the employee's father had committed suicide.
Following the occupational physician’s advice, mediation between the employee and his manager took place in 2022. As a result of the mediation, both parties expressed their confidence in each other and agreed to openly communicate with each other in the future.
An employment expert report showed that the only suitable work the employer could offer the employee was in the form of his own work at another location, but it also showed that there were doubts whether the employee would be able to sustainably perform that work.
To that end the employer started a parallel track in order to find suitable work for the employee with another employer. In the meantime, the efforts to enable resumption of the employee’s own work pursued. The employee did not properly cooperate with the parallel track, however, and failed to meet his commitments. Once he had the impression that he had already worked an adequate number of hours for his own employer again in the meantime he, even unilaterally, decided to stop the parallel track. The efforts to resume his own work met notifications of illness in the meantime, which implied that the employee did not work at all for a number of days.
When finally, in November 2022, the employee was reported fully recovered, the employer proposed to terminate the employment contract by mutual consent. The employee, however, was not really cooperative. Even after the recovery report, the frequent short-term moments of absenteeism just continued.
When a renewed attempt to terminate the employment contract by mutual consent failed again, the employer submitted a request to the Sub-district Court, asking for dissolution of the employment contract. This request was based on various grounds.

The employer firstly stated that the employee had behaved culpably.
In the alternative, the employer claimed that the employment relationship had been disrupted. In the event that the employment contract could not be dissolved on the primary ground or on the alternative ground, the employer asked that the employment contract should be dissolved on a combination of these two grounds.

Insofar as the employee's culpable behaviour was related to the frequent absenteeism, the Sub-district Court was of the opinion that it did not constitute a ground for dissolution of the employment contract, because there was no evidence that the absenteeism had been unjustified and because the employer had not declared that the absenteeism had lead to unacceptable consequences for the business operations. According to the Sub-district Court, the employer's accusation that the employee used to cut corners, would have required an improvement process, but this had not taken place. The Sub-district Court also ignored a number of concrete events that the employer had classified as culpable behaviour, because the employer had failed to address the employee about them. The Sub-district Court was of the opinion, however, that the employee had thrown away his credit with the employer due to a number of events, such as not showing up for a meeting, because the employee had forgotten that the meeting had been brought forward by an hour, such as not having himself tested on time after a notification on having been in contact with a Covid 19 infected person, and taking an full day off, whereas only half a day had been requested.
According to the Sub-district Court, the failure to comply with the employee's reintegration obligations during the parallel track was insufficient reason for a dismissal, because the employer had not earlier addressed the employee about it.
The Sub-district Court did share the opinion that a far more serious commitment might have been expected from the employee. All in all, the Sub-district Court saw insufficient grounds for dissolution of the employment contract for culpable behaviour.
The employer substantiated the disruption of the employment relationship with statements of managers and colleagues, showing that they no longer wanted to work with the employee due to the fact that he was ill so often, which always lead to a higher workload for the colleagues, and due to his disinterested attitude. In return, the employee opposed it by saying that the cooperation with his colleagues was very good, but the Sub-district Court was of the opinion that the employee had not sufficiently substantiated this defence.
Yet, according to the Sub-district Court, the disruption of the employment relationship was also no reason to dissolve the employment contract because the employer had not sufficiently tried to restore the relationship between the employee and his managers and colleagues. According to the Sub-district Court, the fact that mediation with one manager had taken place before was insufficient.
Nevertheless, the Sub-district Court did dissolve the employment contract based on a combination of both grounds for dismissal and awarded the employee an additional compensation of € 2,500 in addition to the transitional allowance of just over € 10,000.
The Sub-district Court pointed to the fact that the employer had not sufficiently addressed the employee about his culpable behaviour and to the fact that the employer had not sufficiently /tried to resolve the disrupted employment relationship between the employee and his colleagues. On the other hand, according to the Sub-district Court, during the illness the employer had paid wages for a long time and had incurred costs for the mediation and the parallel track.

The employee in the above case had really messed it up, but since the employer had failed to properly address the employee about it, the conditions for termination of the employment contract for culpable behaviour had not been met.
More recently, however, it has become possible to have an employment contract dissolved by the Sub-district Court even if not all conditions for one of the grounds for dissolution of a employment contract, mentioned in the law, are met. In that case, there must be a combination of grounds for dismissal that, separately, do not constitute a ground for dismissal because not all legal conditions are met, but that, together, can still lead to dismissal.
In that case, the Sub-district Court may award the employee an additional compensation to a maximum of 50% of the transitional allowance.
So far, this option has only seldom been used. The fact that the Sub-district Court used it in the above case may have to do with the employee’s wrongful conduct.