An investigation agency, commissioned by the employer, had found that an employee who was incapacitated for work had been working elsewhere during his illness. When confronted with this observation, the employee initially lied. The summary dismissal, subsequently given by the employer, was confirmed by the Sub-district Court.
Since 1992, an employee had been working as a relief worker at a farm relief company.
In this position, the employee carried out work on farms in periods when the farmer was not capable to do so himself. The applicable CLA prohibited the performance of competitive activities for payment, if the employer had objected to this in writing. In March 2021, the employee had received a written warning because he had carried out undeclared jobs for one of the employer’s customers while he was incapacitated for work. On that occasion, an additional clause to the employment contract was drawn-up and signed, prohibiting the employee from performing ancillary activities without the employer's permission.
Subsequently, in July 2021, the employee had an accident at work. A powerful kick from a cow on the employee's right arm, made the employee incapacitated for work. The employee could not sustain suitable work, consisting of moving and lifting crates of potatoes of ten kilograms each and, on two occasions, he had refused to do light office work. Subsequently, the employer discontinued paying his wages in October 2021, but the occupational physician had concluded that the employee's complaints had increased and had advised to take any pressure off the employee's right arm.
In March 2022, the employer had given the employee a written warning for negative statements the employee had allegedly made in a conversation with the occupational physician and for inaccurate preparation for the consult with the occupational physician.
In May 2022, once again, the employer had discontinued the wage payment; this time because the employee had failed to be accessible for the occupational physician and because he had canceled a meeting with the reintegration company that was commissioned to find suitable work with another employer for the employee. When, on second thought, the employee still visited the occupational physician, the latter concluded that the employee should not be burdened by work because of a treatment he was about to undergo in the short term.
In June 2022, a new occupational physician concluded that there were usable opportunities for work for the employee. The employee disagreed, however. Shortly afterwards, the employer received an anonymous tip that the employee carried out work in his partner's flower shop. Then the employer commissioned an investigation agency. This agency found, on a number of days, that the employee had carried objects in the flower shop at closing time. Being confronted with these observations, the employee started by denying everything, but eventually admitted all allegations. Then, the employee was summarily dismissed.
Subsequently, the employee challenged the summary dismissal before the Sub-district Court, but without success. The Sub-district Court pointed out that the employee had indicated that he saw no possibility to do any work with his injured arm. Even office work would not be an option for him. During the conversation with the investigators, he wore his arm in a brace and said that he refrained from shaking hands because it might be burdensome for him. This was in stark contrast to the pushing and pulling of the pushcarts with plants and the lifting of a heavy outdoor sign in his partner's flower shop. According to the Sub-district Court, the employee had acted contrary to his reintegration obligations, either by lying about his physical capability to work, or by carrying out activities that would hinder recovery.
The employee had argued that the investigation by the investigation agency had been very limited by making four observations at closing time only and that there was no justification of the frequency of the observations when no activity had been observed. The hinder that the employee experienced from his arm would have varied a bit and he would also have needed some distraction. This defense did not convince the Sub-district Court, however, since a considerable degree of intentional deception had already been established. The difference between not being capable to do anything at all and firmly lugging and lifting could not be explained in any other way, according to the Sub-district Court. The Sub-district Court also pointed to the fact that, less than a year before, the employer had also caught the employee working elsewhere during illness. According to the Sub-district Court, this signaled doubts as to the employee's work ethics.
In the eyes of the Sub-district Court, the employer had already been very accommodating at the time and, in any case, the employee had been a forewarned man since then. According to the Sub-district Court, the fact that the employer had not immediately proceeded to the summary dismissal after he had received the anonymous tip, but had commissioned an investigation agency first, did not mean that the dismissal had not been given immediately.
In fact, the employer had been very diligent to have the correctness of the tip investigated first.
It may seem obvious that a summary dismissal, given if an employee who claims to be ill works nevertheless elsewhere, was honored by the Court, but quite often things turn out differently in practice. It is important that it needs to be established that the employee had restrictions on the performance of work of such a nature that the employee would not be capable or allowed to do the work that he did outside the employer’s knowledge.
That is why it is recommended to have a new assessment carried out by the occupational physician once it has been established that the employee performs work elsewhere, in which assessment the employee should also specifically be asked about his own judgement of his capacity to work.
It is also recommended to let the employee confirm again that he believes that he cannot perform work before confronting him with the fact that the infringement of performing work elsewhere has been established with the information the employer has about the activities elsewhere, and to do the confrontation in a dosed way.
If the employee lies about the work he has performed elsewhere during this conversation, the lying can, if necessary, be invoked as an independent ground for a summary dismissal.
Courts seem to have quite different opinions about the question of whether an employer is allowed to have an employee shadowed by an investigation agency. Some believe that this is contrary to good employment practice. Depending on the circumstances, infringement of the employee's right to protection of privacy may be at stake. With regard to the latter, however, the Supreme Court has ruled that this shall not preclude the use of the results of the investigation as evidence in legal proceedings, because the importance of establishing the truth outweighs it. The employer may, however, owe the employee compensation then, due to the infringement of the employee's privacy.