Threatening the Employer, no Reason for Summary Dismissal

A labour incapacitated employee who had threatened his employer could not summarily be dismissed because the threat arose from the employee's illness.
An employee who worked for a wholesaler in building materials dropped out for work in May 2022. In March 2023, an employment expert from the occupational health and safety service concluded that there was a disrupted employment relationship and recommended mediation. The employer followed up on this advice by organizing a meeting led by a social worker of the occupational health and safety service. The commercial director attended this meeting on behalf of the employer. During the meeting the employee was accompanied by his wife.
At the beginning of the meeting, the employee indicated that he was going through a difficult period and that he experienced little attention or compassion from the employer. When the director did not respond to this statement, the employee’s wife repeated the accusation against the employer. When the director responded by saying that the wife was "quite angry", that remark was wrong with the employee and he blowed the director off, yelling: “Shut up or I'll rip your head off”. The director then ended the meeting. Two days later, the employee was summarily dismissed in writing.
The employee requested the Sub-district Court to annul the summary dismissal. He argued that the statement he had made arose from his illness and that the employer had insufficiently taken this into account. The Sub-district Court pointed out that the law mentions seriously threatening an employer as an example of an urgent reason for a summary dismissal and that the employer may have interpreted the employee's statement as a serious threat. But the statement should be assessed in the context of the circumstances of the case. By summarily dismissing the employee without hearing the employee first, the employer had deprived himself of the opportunity to take the circumstances into account that were put forward by the employee.
The employee had submitted a letter from a psychologist and psychiatrist, showing that he had been diagnosed with Attention Deficit Disorder (ADD) and a recurrent form of depression and that he had been put on medication for Attention Deficit Hyperactivity Disorder (ADHD}. The letter also showed that this medication influences the employee's behaviour in such a way, that the employee may more quickly become angry and irritated. On this basis, the Sub-district Court found it plausible that the medication contributed to the employee's outburst. Partly because comparable incidents had not occurred before, the Sub-district Court was of the opinion that there was no urgent reason for a summary dismissal.
Just in case the summary dismissal would be annulled by, the employer had requested the Sub-district Court to dissolve the employment contract. The Sub-district Court did not get as far as assessing that request, however, because of the prohibition on termination during illness. This prohibition on termination also applies in the event of dissolution of the employment contract, but it does not apply if the reason for the dissolution is not related to the employee's illness.
The Subdistrict Court’s judgement, however, showed that this relation did exist.

Recently, the Supreme Court ruled that hearing the employee is not a requirement for a legally valid summary dismissal. Yet, employers are advised to do so. It will enable them to take cognisance of the employee's defence and to assess whether this defence can be refuted. In the case of a summary dismissal, it is up to the employer to demonstrate the urgent reason for the summary dismissal and this also implies that defences of the employee need to be refuted convincingly.