Working in the Netherlands

An employee was dismissed because he used the company fuel card to put fuel in his wife’s car. The employee (claimant) argued that the summery dismissal was unlawful because a criminal law term (theft) was used as reason for his dismissal.

Dutch Labour law: Be prepared and informed

Extract

The employee misused a company fuel card. The criminal law term of theft was indicated as the reason for termination in the termination letter. This Dutch Labour Law case was decided by the Dutch Supreme Court.

The employee argued that when a criminal law term is given as a reason for urgent dismissal all the elements of the the term must be proofed before the employee can be dismissed. Because dismissal was handled according to labour law principles and not criminal law principles the employer claimed that the dismissal was lawful.

Finding

The Supreme court found that the term theft in the termination letter had a labour law meaning and not a criminal law meaning. Theft was used here in the sense of misuse of company assists.

Good to know

As labour law is part of civil law the principle of balance of probability must be used. An easy way to explain balance of probability is that an employer must be 50 + 1% certain that a serous reason for summary dismissal exists. The burden of proof is more strict in criminal cases.

In criminal cases, the burden of proving the defendant’s guilt is on the prosecution, and they must establish that fact beyond a reasonable doubt. In civil cases, the plaintiff (employer in labour law cases) has the burden of proving the case on a balance of probabilities .

One action of the employee may have criminal and employment consequences. In cases of criminal action the employer must utilise the remedies of criminal procedures such as to open a criminal case with the police.

The employer must always determine if the alleged criminal conduct have an effect on the employment relationship.

The labour law part must not necessarily wait for the criminal investigation to be finalised. There must be determined on a balance of probability if the employee committed misconduct.

The following remedies is open for employer if the employee committed misconduct:

• remedial steps,
• a warning,
• summary dismissal due urgent reasons.

Evidence that is beyond reasonable doubt is the standard of evidence required to validate a criminal conviction in most adversarial legal systems. Generally, the prosecutor bears the burden of proof and is required to prove their version of events to this standard.

Balance of Probabilities Definition: Burden of proof in civil trials.  Also known as preponderance of evidence. The common distinction is made with the burden of truth in a criminal trial, which is beyond a reasonable doubt.

My advise:

• Always separate the criminal conduct from the employment relationship
  • Institute normal criminal charges against the employee if the law was broken,
  • Decide of an internalinvestigation if the employment relationship was effected and if it is an urgent reason for dismissal.
• Don’t wait until the criminal case is finalised. This is two different procedures.
• Don’t use criminal law terms in the termination letter. Utilise a description that explain how the employment relation was irreparable affected, as example in the mentioned Dutch Labour Law case the term theft was used while misappropriation of company assists was meant.

The question may be asked why am I recommending against the use of criminal terms in labour law issues if the employer in the mentioned successfully defended the case:

• It decomplicate the issue to divide the labour and criminal elements,
•  Although the case was won the time that management spend on the court case was lost,
• The separation of the concepts give certainty to employees and enhance fair labour relations principles.

De Hoge Raad

Case: 14/05/05316

Finding: 19-02-2016

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Tags:  Dutch Labour Law, dismissal, balance of probabilities, urgent reason for dismissal, theft, Dutch labour law cases in English

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• Article 7:669 Notification of the reason of termination
• Article 7:678 Urgent reasons for the employer to termiate the employment agreement immediately
• Article 7:679 Urgent reason for the employee to terminate the employment agreement immediately
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