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Ancillary work during incapacity for work: is instant dismissal justified?

Culpable behaviour by employees is evident if there is evidence of theft, fraud or (sexual) harassment, for example. Subject-related dysfunction also constitutes grounds for dismissal if there is sufficient documentation. But what if the employee performs well on substance, but the attitude is predominantly negative, or the employee is invisible or unreachable?
For example, consider employees who do not adopt a constructive attitude, have a coercive and defensive way of communicating, regularly challenge employer authority, repeatedly criticise managers and other colleagues, and so on. In our experience, it is not a sine cure to put your finger on the problem in such cases.
Nevertheless, an employee’s behaviour is also part of his or her overall performance. If this is lacking, the employee can be held accountable for it. A recent ruling confirms that dissolution is possible in such cases (ECLI:NL:GHARL:2022:6364).

Facts

What was going on in this case? An employee who had been employed by a waste collection company for over 30 years regularly communicated at work in an offensive and emotional tone. In response, his team leader had a conversation with the employee. This included an agreement to evaluate monthly how the employee came across to others and to explore what other tasks in the department would suit the employee. A report was made of this conversation, which was signed by the employee.
The employee responded to this interview report by letter and email, accusing his team leader of vote-buying and favouring colleagues. The employee also stated that he no longer wanted to work in his department, as relations had allegedly been seriously disrupted by his team leader. Following this, the parties entered into discussions, with which the employer aimed to improve the relationship of trust between the employee and his team leader. To this end, the employer engaged an external coach and offered the employee a course to improve his way of communicating. The employee subsequently completed this course.
A scant two months later, the employee reported sick. When he was invited by the employer for an appointment with the company doctor, the employee refused, for which he subsequently received an official warning. His pay was also suspended.

The company doctor determined that the employee was unfit for work as a result of a difference of opinion with the employer and recommended a two-week time-out to allow the parties to seek solutions in discussion after that time-out. On the occasion of an invitation for a further consultation with the company doctor, the employee reacted suspiciously and indicated that he would not be open to a conversation again until after an expert opinion from the UWV.

In response to this e-mail, the employee was reminded by his supervisor of his unacceptable way of communicating and requested to communicate in an open, friendly and constructive manner. This agreement was confirmed during the conversation that followed the e-mail. The employee then responded again by e-mail to the conversation report, dismissing it as “a one-sided representation of the employer. He then sent his own report.

Employer scheduled another interview for this reason, at which time employee indicated that he would prefer not to return to the position in his own department. Employer was willing to cooperate and made the employee a transfer proposal. After a conversation and a specific proposal to this effect, the employee rejected this proposal, as he disagreed with his place of employment. In the scant five months that followed, new conversations took place during which verbal agreement was reached with employee, the employer sent the transfer proposal to employee by letter, and employee then rejected the proposal by e-mail in strong and inappropriate terms. The employer called employee’s attention to his inappropriate manner of communication.

A transfer was eventually agreed upon with the employee. The employee then worked part-time at the weighbridge at the employer’s environmental recycling station, one of the locations to which he had requested a transfer. During an evaluation interview, the employee expressed discomfort with pollen and sand. The employer then consulted the company doctor, who reported back that the employee no longer had work restrictions and that an oral mask would suffice for work in the dusty environment. The employee responded by email, in which he accused his supervisor of creating an unsafe workplace, situation and stress. He also disputed his earlier warning and returned to the transfer. Thereafter, the employee refused to continue working at the weighbridge, despite summonses from his supervisor, after which the employee was suspended indefinitely. Ultimately, the employer requested the subdistrict court to dissolve the employment contract, primarily for culpable conduct.

Dissolution

The Subdistrict Court made short shrift of the employee’s behavior and dissolved the employment contract on the grounds of culpable conduct by the employee. According to the sub-district court, a picture emerges of an employee with whom it is ‘bad business,’ an employee who communicates poorly, defies the employer’s authority, goes back on agreements made, and does not adopt a cooperative and constructive attitude where this should have been expected. According to the Subdistrict Court, the employee’s actions are such that the employer cannot reasonably be required to continue the employment contract, also because the employee has not changed his behavior despite warnings and instructions. According to the subdistrict court, the limits of what an employer must tolerate from an employee have been reached.

It may not surprise you, the employee appeals.

On appeal, the Arnhem-Leeuwarden Court of Appeal concluded that the subdistrict court was right to dissolve the employment contract. In its reasoning, the court of appeal is critical of the employee’s conduct. The Court of Appeal emphasized that the employer had tried to normalize relations. Furthermore, the employee went back on the warning he had received several times in a coercive and accusatory manner. According to the court, this is a striking example of the employee’s lack of any understanding of his position as an employee under the authority of his employer and what can thus be asked and expected of him as an employee. It also appears that the employee always allowed himself to be persuaded in the discussions, after which, however, e-mails followed in which the employee returned to the issue of the location, using a coercive and accusatory tone. This made the employee unpredictable. The court also considers that at one point, the employer had made it clear that the limits of what was acceptable to the employer were coming into view and that the employee’s attitude, behavior and, above all, the way he communicated, had put his employment contract at risk. Despite all this, the employee continued to test the employer’s patience by continuing to question the place of employment. After agreement on the transfer was reached, both employee and employer aimed for a fresh start. Given the prior history and warnings the employee had previously received, he could be expected to fully commit to this flexible (temporary) position. The employer was entitled to assume that a difficult period in the parties’ relationship had ended when agreement on the transfer was reached. In light of employee’s refusal to work, the employer was justified in concluding that it had reached the limit of what it was still willing to accept from an employee.

The employer also no longer had to have confidence in the fact that the employee would comply with the recently made agreements on continuation of the employment relationship and would communicate with her in an appropriate manner in the future. The long-term existence of the employment contract and the employee’s satisfactory performance until recently did not carry sufficient weight.

Application

What practical handles can be distilled from this? Attitude and behavior do form part of the overall performance and an employee, no matter how well he functions, can be held accountable for this. It helps if this is recorded in writing. It is also advisable to keep reminding the employee of his attitude and communication, to have conversations about this and to make agreements. It may also be advisable to offer the employee (external) help/courses to enable the employee to improve his attitude and communication. At the moment the behavior does not improve enough, this can be grounds for dissolution of the employment contract.

Do you also have such a case going on? Then be sure to contact one of our attorneys.

 

Thomas van der Toorn

Published On: 19 September 2022

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