Pulling down the Shorts and then Leaving your Colleague Mooning is not a Joke

An employee who had pulled down the shorts of a female colleague, so that she suddenly stood in her bare buttocks amidst her colleagues, was rightly summarily dismissed.

Since he was 17 years old, a 41-year-old production employee had worked at a car factory. In September 2022, he came behind a female colleague during work and pulled down her shorts, so that she unexpectedly showed her bare buttocks on the work floor, in front of her colleagues. The next day, his manager called the employee to account. During that conversation, he apologized and indicated that it had been a bad joke. Nevertheless, the employer summarily dismissed him the next day.
The employee contested the dismissal with the Sub-district Court, but the Court was not impressed by the employee's defence.
The Sub-district Court did not attach any consequences to the fact that the procedure for serious disciplinary measures, as set out in the company regulations, had not been followed because both parties had been heard and because the employee had not adversely been affected by not following the procedure. The facts were clear and there was no reason to believe that following the procedure would have led to a different valuation of the incident.
According to the Sub-district Court, it has not been demonstrated that the prevailing culture in the workplace was one in which also the managers make uncivilised jokes, nor one in which the managers were aware of any previous incidents. In contrast, the company rules prescribed that colleagues should treat each other with respect. There were also display panels in the production hall indicating this policy, and the employee had attended a company training course that looked at the desired behaviour.
The employee had argued that the female colleague had not been angry, had not cried or had felt embarrassed, and that, on the contrary; she had laughed out loud herself.
The employer disputed this, however. According to the employer, the colleague had been very upset, had cried and had felt embarrassed. But, the colleague’s own vision on the incident was not essential in the eyes of the Sub-district Court. The employee could not know in advance how his colleague would react. And a reaction as the employee described it would not have been an obvious one.
The fact that other colleagues had been involved in the "joke" whom the employer had not punished, had not been established, according to the Sub-district Court. In any case the employee had been the one to play the "joke".
Finally, the employee's defence that the summary dismissal would have been an excessively harsh step to take, also failed to meet with the approval of the Sub-district Court. The Sub-district Court considered it a very serious offence. It was likely that the colleague would be confronted with it for a long time to come, or at least that she might face confrontation with it for a long time to come. The personal consequences of the dismissal for the employee were no reason for the Sub-district Court to annul the summary dismissal either. The employee’s debts he had drawn to the attention (traffic fines and non-payment of the premium for the health insurance) already existed before the summary dismissal took place and had only increased by the non-payment.
Therefore, the Sub-district Court upheld the summary dismissal.

Undesirable behaviour at work is a problem that currently receives a good deal of attention, as a result of eye-catching incidents in the public domain (The Voice, Ajax, the Dutch Labour Party, the Dutch House of Representatives, the talk show “De Wereld Draait Door”, Studio Sport).
Therefore employers are advised to respond adequately to infringement of the standards in this area. It is comforting to note in the above case, that the Court did not punish an employer who took strict measures in the event of a serious incident.
Note that the Sub-district Court’s decision might well have turned out differently, if the employer had not paid attention to the codes of conduct and the generally accepted manners at work first. A good protocol with clear standards of conduct, compliance with the good example, and enforcement of these standards of conduct by managers, a complaints procedure and the availability of a trustee are matters that an employer should have properly arranged.