Employer has to Compensate the Employee for Unsafe Working Environment

The employment contract with a female employee was dissolved by the Sub-district Court for a damaged employment relationship. In addition to the transitional allowance, the employer had to pay a fair compensation, due to the fact that the employee had become labour incapacitated as a result of the employer’s verbal outrage and harassment. Thus, the employer had not provided a safe working environment for the employee, which was seriously culpable.
Since 2019, a family owned company in the tank-trucks, tank-containers and trailers cleaning services employed a currently 23-year-old desk-clerk. Her supervisor was the company’s director and major shareholder’s son. In March 2021, the employee reported sick. In April 2022, she held the employer liable for the damage she suffered as the result of the employer’s violation of her duty of care for a safe working environment. She complained about the way in which her supervisor often responded to errors and mistakes, made by her and her colleagues. He then used to start screaming, sometimes only a few millimetres away from the face of the one who made the mistake, name-call the person concerned and, when finished screaming, slam the doors. In addition, the supervisor commented the looks of the two fellow desk-clerks and if the employee made a remark about it, the supervisor completely unloaded.
In August 2020, the employee had received a note from the supervisor that stated that she was pretty and sexy. The employee was not amused and had discussed it with a colleague who, among other things, had the responsibility for the company’s working conditions. This colleague had discussed the case with the supervisor and the supervisor had promised to apologize, but had failed to do so.
Sometime later, the supervisor had told the employee that he was in love with her. The employee then stated that the love was one-sided. Then the supervisor had started forcing himself on the employee: he stared at her continually, had moved his desk so that he sat directly behind the employee and made annoying remarks all the time. The sickness report had been the result of an incident in which the supervisor had, once again, become aggressive and angry.
After an unsuccessful attempt to have a conversation and after also a mediation attempt had failed, the employer had requested the Sub-district Court to dissolve the employment contract for a damaged employment relationship. The Sub-district Court had done so, granting the transitional allowance and a fair compensation of EUR 10,000.
When the employer lodged an appeal with the Court of Appeal, so did the employee.
In the appeal, she claimed a fair compensation of € 60,000 to be awarded. Then, the Court had to assess whether the employee was entitled to a fair compensation and, if so, the amount of the compensation.
The Court of Appeal held the opinion that the employer had insufficiently contested the employee's statements which were confirmed by two statements from former colleagues. According to the Court of Appeal, this had made it sufficiently plausible that there had been an unsafe working environment and that, as a result, the employee had become incapacitated for work. By law, the employer has the obligation to limit the psychosocial workload of the employee and it was seriously culpable that the employer had failed to do so, considering the presence of verbal and psychological violence. Therefore, the employer had to pay fair compensation.
The Court set the amount of the fair compensation at EUR 4,000.
In this respect it was important for the Court of Appeal that the employee had found another job from the day when the employment contract had been dissolved by the Sub-district Court.
Another consideration of the Court of Appeal was that the employer had tried to restore the employment relationship during the employee's labour incapacity.
And, finally, the short duration of the employment had been a point of consideration for the Court as well.
The fair compensation of EUR 60,000 the employee claimed was based on the employee’s expectation that her work for the employer normally might have continued for at least another five years. The Court assumed, however that, also in that case, the employee would have started looking for another job.

Pursuant to the Working Conditions Act, an employer is obliged to limit the psychosocial workload of an employee. This concerns stress that can arise from discrimination, (sexual) intimidation, aggression, violence, bullying as well as from work pressure.
When it comes to undesirable behaviour, the employer should, in particular, ensure that there is a protocol, a complaints procedure and the availability of a trustee.
The fair compensation in the above case turned out to be very low. This was due to a number of circumstances, including the fact that someone had been available who de facto had acted as a trustee.