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.
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.
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.
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:
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.
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:
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
André Beukes is an EU Management Consultant to international companies doing business in Europe. He provides clients with practical business support that makes a real difference doing business in the EU. “Put simply, I am here to help you meet your challenges. I believe in the importance of doing things correctly, meaning risks are reduced and problems are avoided.”
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