DOING BUSINESS IN EUROPE


Doing business in the EU

Dutch Labour Law: The dismissal of an employee that e-mailed confidential company information

Summary of Dutch Labour Law case   

The employee was informed by his employer that his service will be terminated with immediate effect with a favourable compensation package. Before the employee left his office he e-mailed a list of customers, accounts and contact particulars to his company e-mail address.

The Employer subsequently dismissed the employee three (3) weeks later for misconduct.

The employer argued that the employee had an intend to use the information unlawfully to the detriment of the employer.

In court the employee argued that the employer was aware after the first interview of the alleged misconduct but he was only dismissed three (3) weeks later for misconduct.

Finding of the Court

The judge indicated that where an employer suspects serious he must first investigate the allegations. The time period between the alleged actions of the employee and the date of dismissal will be determined by the complexity of the case and availability of the evidence. The judge found that in this case the three weeks between the misconduct and dismissal is fair.

Summary dismissal is the ultimate remedy and it must be considered if the gravity of the misconduct warrants summary dismissal.

The Judge found that the send of information to the employee company e-mail address is not against any rules. According to the employer constitutes the intent of the employee to use the information to the detriment of the employer serious misconduct.

The judge found in this Dutch Labour Law case that the employer could not provide evidence that:

  • The employee had the intent to misuse the information,
  • That the employee indeed did misuse the information or distributed it to other parties.

 

Dutch Labour Law principles

  • According to Dutch Labour Law principles may both parties end the employment relationship.
  • The Employer can end the employment relationship due to an urgent reason.
    • An urgent reason for the ending of an employment relationship must in terms of Dutch Labour Law include the following:
      • Misconduct of the employee that is of such a serious nature that the employment relationship became intolerable.
      • Section 7:677 of the Dutch Civil Code indicates specific acts of misconduct that be seen as serious: theft, drunk at work, mistreatment or insulting another person and reckless behaviour.
    • Before a decision is made that an employee is summarily dismissed, the employer must:
      • Consider all the facts,
      • Consider all the surrounding circumstances,
      • Why the misconduct is considered by the employer as serious,
      • The function and service record of the employee,
      • The age of the employee and length and service,
      • The personal circumstances of the employee,
    • When the dismissal is challenged in a court the employer must provide evidence that all surrounding facts were considered before a decision was made,
    • Unlawful action in Dutch Labour Law refers to the question if the action of the employee (or inaction) constitutes an infringement of a right that is contrary to a legal obligation, common law or is incompatible with a social norm. Section 6.162 of the Dutch Civil Code.
    • Gross misconduct offences can lead to immediate dismissal without any further warning. Gross misconduct includes damaging work equipment through negligence; discovery of false information on the job application, fighting or brawling at work; harassment of other employees, such as sexual or racial harassment; use of employer’s equipment (e.g. vehicles and computers) to engage in non-work-related activity or other violations of employer policies, illegal activity, or to view pornography; testing positive for illegal drug usage; failure to submit to a mandatory drug test (especially for transportation or heavy equipment-related jobs such as machine operators); engaging in illegal activities on the job (such as embezzlement or illegal subordinate harassment); or cheating the employer out of wages by “padding” a time sheet.
    • Summary dismissal does not mean direct dismissal. As indicated in the discussion of the Dutch Labour Law case all facts must first be considered before an employee can be summarily dismissed.  Summary dismissal is dismissal without notice. It does not require advance notice to the employee and wages are only paid to the time of dismissal. An employer has a legal right to summarily dismiss an employee without notice for serious misconduct or other conduct which justifies such dismissal.

link to case

Andre Beukes LLM

Andre Beukes LLM

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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