There is a lot to learn form the resent Grolsch case about how judges interpret the amended Dutch Labour law concerning the termination of the employment relationship.
The lesson to learn is that all the right steps of the employer later in the process does not mend faults made earlier. It is also clear that expensive legal action can not replace correct Human Resource Management actions when an issue originates.
The evidence in the case indicates that the incident of poor employee conduct did not lead to the breakdown of the employment relationship but was actually the result of the employers reaction to the incident.
Click here for guidelines on how the employer manage incidents of poor employee conduct.
Grolsch submitted an application on 18 november 2015 that the employment agreement with the employee (X) must be dissolved. X submitted a defense and a counter request.
Both parties agreed that there is irreparable damage to the employment relationship.
The disputed issues were:
X was employed by Grolsch on 1 August 2009 and his last position was that of Technical Brewer.
On 14 July 2015 the European Brewing Lead (Z) visited Grolsch. It was planned that X will give a presentation and conduct a question and answer session that Z will attend.
X and Z met previously and it did not went well at the time. This had the result that the relationship was strained and X was highly tense about presenting the session. During the presentation X was so tense that it resulted in nauseousness and he ran out of the meeting room and vomited outside. X booked off sick after the incident.
On 16 July 2015 X had a meeting with a representative of HR and his immediate supervisor V. The same day X was informed in writing that his conduct on 14 July was unacceptable, that it harmed the reputation of Grolsch. That X threaten in the meeting that he was going to resign. It was also confirmed that they agreed that X due to his emotional state will make an appointment with the company Industrial Psychologist.
After the appointment with the Industrial Psychologist X wrote to the employer stating that his actions was unacceptable, and that it was the result of being physically unwell. He also booked off sick due to the sickness on the day of the incident. He informed the employer that he wrote a letter to Z to apologize. The remark that he want to resign was made directly after the incident and was done in an emotionally state. X indicated in the letter that he want to discuss the issue with his supervisor (V) to settle everything and he would still love to work for Grolsch for years.
The Reply from Grolsch was:
The company Industrial Psychologist referred the case to the Employee Insurance Agency (Uitvoeringsinstituut Werknemersverzekeringen, UWV) for determination.
The UWV found that the situation was not the result if sickness, but due to labor conflict. X is fit for work but only at another employer than Grolsch.
Case number: 4609667 EJ VERZ 15-422 en 4754227 EJ VERZ 16-28
The following elements must be considered be the manager:
The circumstances of the misconduct or poor working performance of the employee
- Consider every case on its own merits,
- The specific circumstances surrounding the case will determine if the case will be considered as serious (urgent),
- The work record of the employee must be considered. It is of crucial importance that all instances of misconduct and poor work performance must be noted in writing. Previous instances of similar misconduct or poor working performance must be taken in account,
- Any remedial steps the the employer took previously to address the misconduct or poor working performance must be considered,
- Identify any trends in the conduct of the employee. A specific occurrence may not be seen as serious misconduct but a trend may warrant a summary dismissal,
- Was the employee warned previously that his/her conduct is not acceptable and did the employee maybe received a final written warning,
- Consider how similar cases of misconduct or poor working performance was handled with other employees in the past. The employer must ensure that instances of misconduct or poor working performance must be handled in a consistent manner. All employees must be treated equally.
- It may be that an employment contract, a collective labour agreement or internal regulations/ prescriptions pertinently prescribes that certain misconduct must be seen as serious. This will however not always be a valid reason for summary dismissal. In terms of Dutch Labour Law the specific circumstances of the case must be considered before it can considered as an urgent reason for dismissal. If there is not a valid reason that a specific action warrants an urgent dismissal the stipulation will have no legal force.
- Did the employer act in an unacceptable manner or was misconduct of a fellow employee the reason for the actions of the employee. In these circumstances it may be that the employee can not be summarily dismissed for urgent reasons,
- The possible effect of the misconduct or poor working performance on the reputation of the employer must also be considers, eg bad press coverage. It will also have a aggravating effect on the decision if the actions of the employee may lead to possible criminal charges against the employer,
- The job function of the employee that committed misconduct or poor working performance will also play an important role in considering if it is an urgent reason for dismissal. In some functions a zero tolerance policy will be applicable. Examples are a taxi driver using alcohol or a air traffic controller that sleeps on duty. But the Labour Law principle that the misconduct can only be seen as serious after all the circumstances are considered is also here applicable,
- The personnel circumstances of the employee must also considered such as his/her length of employment, personal circumstances, the effect that it will have if he or she is dismissal and the employee age and if he/she is near retirement.
Good to know
If you own a company in the Netherlands and one of your employees becomes ill, you must work together with the employee to do all you can to ensure that the employee in question resumes work – if sensible – as quickly as possible. The employee can return to his/her original position, another suitable position within your organisation or a position with another employer.
What should you do?
The Eligibility for Permanent Incapacity Benefit (Restrictions) Act (Wet verbetering poortwachter) obliges you to take a number of steps within a certain period of time. You and your employee have to draw up a plan of action. You have to maintain a reintegration dossier which records all agreements and activities. This dossier also includes for example the plan of action, the reintegration report and correspondence with your working conditions service (arbodienst) or company doctor.
Did your employee’s reintegration programme come to a halt? Is your working conditions service or reintegration company unable to continue to assist you? In that case, you can request an expert assessment from the Employee Insurance Agency (Uitvoeringsinstituut Werknemersverzekeringen, UWV).
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.”