Dutch Labour Law. Be prepared and informed.
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This Dutch Labour Law case will enlighten managers whether an employee can be dismissed if he/she refuses to work or follow orders.
The employee (complainant) approached the court because he was summary dismissed due to alleged refusal to work. The employee was a cleaner and he refused to perform duties at a specific client. His supervisor informed him that “if he does not want to work it is better that he went home”. The worker left, but came back after 10 minutes and requested a free day. The supervisor again requested the employee to work because the company urgently needed the services of the employee. After the employee refused to resume duty he was summary dismissed for refusal to work. The employer took the fact in to account that that the work schedule an efficiency of the company was negatively affected. The employee also claimed that there was outstanding salary that the employer still owes him.
The legal question before the court was: is the refusal to work a valid urgent reason for dismissal in terms of artical 7:678 point 1 of the Dutch Civil Code?
The court found that the employee was unlawfully dismissed.
In alleged unfair dismissal cases the onus is on the employer to proof that the dismissal was fair and legal.
Summary dismissal may only be used as a last remedy in exceptional and serious instances where the employer has no other option.
An urgent reason for dismissal in terms of article 7:678 point 1 of the Dutch Civil Code is where it is unbearable for the employer to continue the employment contract with the employee due to the actions of the employee.
In events of employee conduct of a serious nature the employer is responsible to discuss the issue with the employee and place it on record. Where the employee is summary dismissed for misconduct of a serious nature the onus of proof is on the employer to indicate that the dismissal was justified.
All surrounding facts must be considered by the employer before a decision of summary dismissal can be taken. The employer must also provide evidence that all the surrounding facts were considered.
The employer claimed that the dismissal was based on several negative comments of the employee that had a detrimental effect on the work environment and that the employee was a problem worker. According to the employer the employee decided his work hours himself in contradiction with the instructions of the employer.
The judge found that there is not enough factual evidence that the conduct of the employee was serious.
The judge indicated that before an employee can be dismissed for failing to follow instructions the employee must be warned with a clear indication what the consequences will be if he does not fulfill the instruction. In this case the employee did not receive an adequate warning.
Insubordination is defined as defiance of authority or refusal to obey orders.
An insubordinate employee is one who purposely ignores her manager’s direct orders. Depending on the insubordination’s severity and the number of times it’s occurred, it may or may not be a dischargeable offense. Often, insubordination may be the result of inexperience or bad judgment that can be remedied with a quick word. When it’s chronic and willful, it’s a different matter entirely.
If an employee physically assaults or intimidates a manager or other superior in the workplace, that is grounds for immediate dismissal.
If this occurs, the details surrounding the event should be documented immediately. If necessary, call the police. It may be wise to have security or another staff member escort the agitated employee off the grounds, with the understanding that he can come back later to gather his belongings. Taking a strong stand against workplace violence is essential.
Verbal abuse, such as the use of profanity and insults, may or may not be grounds for dismissal.
Commonly referred to as “shop talk,” the manager must decide whether the language was out of the ordinary. If not, then insubordination may not have been intended. Also, if the manager incites insubordination by verbally abusing employees, that’s an extenuating circumstance that may force the manager to undergo performance training, as opposed to the summary firing of the “insubordinate” employee.
Another cause for dismissal due to insubordination is the refusal to perform a manager’s direct order. This may manifest itself in a verbal or nonverbal refusal. It can also be interpreted as an “unreasonable delay in completing work. Because the refusal or delay may result from the employee’s misinterpreting the instructions, employers should carefully consider whether the incident constitutes true insubordination.
As a result, each incidence of refusal or delay should be carefully documented in an employee’s file for the purpose of verifying a history of insubordinate conduct.
Dealing with Insubordination
Because most instances of insubordination result from a non-physical threat, it’s wise to take the time to correct the employee’s behaviour privately instead of dismissing him. If the manager feels that there is a pattern of willful disobedience, he/she should take care to document it and report it to her own superior.
Taking the time to carefully evaluate employee actions and motivations is an essential step for the manager to take.
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Tags: summary dismissal, insubordination, refusal to work
André Beukes is an EU Management Consultant to international companies doing business in Europe.
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