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Summary dismissal evident with an extremely threatening comment? Nothing is what it seems!

In case of seriously unacceptable behaviour by an employee, such as threats or drunkenness at work, this would at first glance seem to be sufficient grounds for many employers to proceed with summary dismissal. And this is not surprising: the law explicitly lists such behaviour as objective urgent reasons for summary dismissal.

However, case law shows that even in cases where summary dismissal seems obvious, summary dismissal is not always legally valid. The dismissal can then still be annulled retrospectively, as a result of which the employee must be readmitted to work or be paid a fair compensation instead. This was the case in a recent ruling.

Rules for summary dismissal
We first briefly summarize the three requirements for summary dismissal:
1) There must be an urgent reason: this refers to acts, characteristics or behaviour of the employee that result in the employer not reasonably being required to continue employing the employee. The law gives a number of examples of an urgent reason, but whether it exists ultimately depends on all the circumstances of the case. Moreover, reasons not mentioned in the law can also lead to summary dismissal. Always, the nature and seriousness of the urgent reason must be weighed against the employee’s personal circumstances.
2) The employment contract must be terminated without delay. This is not the same as ‘immediately’. In fact, it is permissible to take some time to investigate the circumstances, but the employer will have to act expeditiously in doing so and not wait longer than necessary to give immediate dismissal.
3) The urgent reason for dismissal must be communicated without delay to the employee. As a rule, this is done by means of a letter confirming the dismissal and its reason. It is not compulsory to make this communication at the same time as the notice; a short time between the notice and the communication is allowed. In practice, however, this constitutes one and the same act. Furthermore, the reason communicated fixes the reason for dismissal: in principle, it is not possible to adjust it afterwards. This means that the reason communicated as being the reason for dismissal cannot later be supplemented by another reason. It is therefore important to draft the dismissal letter carefully and completely.

Threat
In a recent case before the Zeeland-West Brabant Court, an employee’s summary dismissal was overturned. The summary dismissal had been given by the employer because an employee had shouted ‘Shut up or I’ll rip your head off your torso’ to the commercial director during a reintegration interview.

Employee then sought annulment of the dismissal in the court.

In the opinion of the court, the employee’s comment was transgressive and the court found it understandable that the employer had taken this as a serious threat. On this basis, according to the court, it could be concluded that there was an urgent reason. However, the conduct must be assessed in the context of the circumstances of the case, the court said. Although not mandatory, for that reason it is important to hear the employee before proceeding with immediate dismissal. The employer had not done so in this case. The court considered that failure to hear the employee could result in circumstances brought forward afterwards causing no urgent reason to be present. And that risk must then be borne by the employer.

The court ruled that all the circumstances of the case had not been sufficiently taken into account in this case, as the employee was under treatment by a psychologist and psychiatrist who had diagnosed him with ADD and recurrent depression. To treat the employee, he had been prescribed Dexamphetamine, which, as a side effect, could cause the employee to react more quickly with anger and aggression. According to the court, it was plausible that the medication had contributed to the employee’s outburst. Admittedly, the employee’s outburst was unexpected, but the employer had not sufficiently studied the employee’s situation. It followed from the medical records and the employee’s statement that he was going through a very difficult period.

On top of this, the employee was disappointed with the lack of contact with the employer, which he was keen to convey in the interview. According to the employee, his employer showed no understanding for this and was only told by the commercial director that he would have a “whole file” on the employee. This file consisted of several app messages to which the employee had not responded. However, these messages had been sent to a company phone that the employee had already handed in and thus had not been able to read. Apparently, this comment caused the employee’s frustration.

Based on these facts, also taking into account that no similar incidents had taken place during the employment, the court held that there was no urgent reason. For this reason, the court annulled the summary dismissal given. The summary dismissal in this case therefore did not stand, even though the court had ruled that the employee’s statement constituted a serious threat and had also taken into account that the employee had not immediately apologised.

This case illustrates that even if a summary dismissal seems obvious, it does not necessarily have to be so and all the circumstances of the case must be considered, including medical circumstances. This also applies, for example, in particular when employees are struggling with alcohol addiction (see, for example, this ruling). The case described above also shows the importance of allowing the employee to tell his side of the story before proceeding to summary dismissal.

Contact
Overall, summary dismissal remains a tailor-made procedure. Even in cases where summary dismissal seems clearly the appropriate route, there may be more at play in the background and it is important to have the file legally reviewed first.

Do you doubt whether you can legally proceed to summary dismissal, please do not hesitate to contact us on +31 20 305 33 33 / info@bd-advocaten.nl

Thomas van der Toorn

Published On: 11 April 2024

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