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

If an employee is unfit for work, both the employer and the employee have obligations. For instance, the employer must facilitate that the unfit employee can perform suitable work within (or outside) the company. Suitable work is work that is suited to the strengths and abilities of the employee. On the other hand, the employee has the obligation to perform suitable work if the employer provides him with that opportunity.

As a rule, an employee builds up the performance of (suitable) work, based on the advice of the company doctor regarding the employee’s recovery and capacity to work. Employee starts with a few hours work per week and works towards full reintegration.

In practice, an employee may work for another company parallel to performing suitable work for his employer. How does this relate to the employee’s workload capacity and reintegration with his employer? And what can the employer do when the employer notices that the employee, without having reported this to the employer or the company doctor, works for another employer in addition to the suitable work?

In a recent case at the Rotterdam District Court, these were the central questions.

District Court of Rotterdam, 3 February 2022, ECLI:NL:RBROT:2022:1192

Facts

This case concerned a healthcare employee. Due to a traffic accident, the employee had been ill since 16 March 2020. September 2020, the reintegration process started. In November 2020, the employee’s duties were increased to 4 x 6 hours per week. In February 2021 the work was scaled down to 4 x 4 hours per week, due to the increase of the disabilities. The consultation advice of the company doctor shows that this was her maximum work capacity at that moment.

In April 2021, the employer requested the employee for a current Certificate of Good Conduct (VOG). The employee submitted a VOG dated 23 October 2020. A different employer was mentioned on the VOG. As a result, the employer suspended the employee. After further investigation, she was summarily dismissed in April 2021. It follows from the letter of dismissal that during her employment contract with the employer and during her incapacity for work, the employee performed work for another healthcare organisation without informing the employer or the company doctor.

The employee asked the court to annul the immediate dismissal because of the absence of an urgent reason.

District Court ruling

The court ruled that the immediate dismissal had been justified. The employee acknowledged that during her incapacity for work she had carried out work for another care organisation. The court considered that, by virtue of good employment practice, it would have been up to the employee to inform her employer and the company doctor of this in advance. In that case the company doctor would have been able to form a more accurate impression of the employee’s workload capacity. The fact that the employee should have reported the secondary activities is even more applicable now that the employee physically carried out work for the other company on location, while during that same period she only carried out administrative activities from home for her employer on a reintegration basis. Therefore, she performed the same work for the other company as she originally performed for her employer but was not allowed to perform for her employer during that period due to her medical restrictions. By not informing her employer and the company doctor about the ancillary activities, the employee withheld essential information from them and gave an incorrect presentation of the facts, which the court found to be a serious charge against the employee. According to the court, an additional factor was that the Collective Labour Agreement (CAO) for the Municipal Health Care Sector (GGZ), which was applicable to the employee, expressly prohibited the employee from carrying out ancillary activities that could not reasonably be reconciled with her position or with the interests of the healthcare institution. In the opinion of the court, the ancillary activities were incompatible with her position, because these activities could lead to a working week of 64 hours in total, which cannot be regarded as a realistic working week in view of the health of the employee and the interests of the employer.

What does this mean for you as an employer?

Based on good employment practice, it is only within reason for an employee to notify the company doctor and the employer if he or she wishes to perform ancillary activities during incapacity for work. This, among other things, with a view to determining the employee’s workload capacity. If an employee nevertheless carries out ancillary activities during incapacity for work without prior notification, this may constitute grounds for immediate dismissal.

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