by THOLEditor | Jun 3, 2024 | Features, Finance, Legal, Work
The grounds on which an employment contract can be terminated are set out in the law. One of these grounds is culpable actions of the employee. In this article, I will shortly discuss this ground for dismissal. The article then focuses on seriously culpable behaviour of the employee.
Seriously culpable behaviour
For a valid dismissal based on culpable action, the employer must show that the employee’s actions are so culpable that the employer cannot reasonably be required to continue the employment contract. If the court finds that there has been such conduct, the employment contract will be dissolved by the court. The employee can then still claim the transitional compensation.
However, the employer can also go a step further in its request and ask the court to rule that there is serious culpable conduct. The employer then asks the court to disregard the notice period when dissolving the employment contract and determine that the employee is not eligible for the statutory transition allowance. Below, I discuss three rulings in which the court ruled that seriously culpable conduct was involved.
1.
The first case involves an employee who was working as a tram conductor for 23 years. The proceedings established that this employee had violated her work instructions by selling tram tickets against cash, while this was not allowed. In addition, she had knowingly sold wrong tickets to tourists, which meant that they had not received the tickets they were entitled to expect. She did not give the proceeds of these cards to her work giver, but she kept it in her own pocket.
In the verdict from 27 June 2023 the Amsterdam Court ruled that there was serious culpability on the part of this tram conductor. The judge ruled that the employee had betrayed the trust placed in her. This applies to both the trust that passengers are entitled to have when travelling by public transport, but also the trust that the employer has in its employees that they represent the company correctly and act in accordance with the work instructions.
2.
The second case concerns an employee who worked at the at the municipality of Rotterdam since 2005 as a civil servant. In her job, she had access to several systems. Among other things, these systems allowed the employee to check whether someone had submitted a claim for benefits under the Participation Act and whether it had been approved.
In May 2022, the employee informed her supervisor by telephone that she had been detained by the police in connection with a suspicion of fraud under the Participation Act. As a result, the Municipality of Rotterdam suspected that the employee had committed an integrity violation. The employee was therefore suspended and the Municipality of Rotterdam launched an integrity investigation.
The investigation revealed that the employee had made several unauthorized searches for her partner in the municipality’s systems. As a result, she knew or could have known that her partner had applied for welfare benefits. However, the employee did not inform her supervisor about this, even though she was working in the department where those applications come in and are processed. In addition, in short, the employee had allowed her bank account to be misused by her partner. According to the judge, in doing so, she violated her oath of office , the Declaration on Use of Information and Secrecy of the Municipality of Rotterdam signed by employee and the Codes of Conduct of the Municipality of Rotterdam.
The Rotterdam court found that the employee had acted seriously culpable. The judgement refers to comments by the legislator on the relevant sections of the law. According to the court, this shows that an employee who, by acting in violation of known rules of conduct of the organization, has seriously betrayed her employer’s trust in her, can be deemed to have acted seriously culpable. In the opinion of the subdistrict court, this was the case in this instance.
3.
When the relevant legislation was introduced, the legislator indicated that serious culpability on the part of the employee could include, for example, the situation where the employee repeatedly fails to comply with sickness control rules, even after application of wage suspension, and there is no justifiable reason for this. This was also the case in the North Holland court in this case.
During the proceedings, it was established that the employee had missed six appointments with her company doctor. Despite repeated efforts, the employee was unreachable by the employer, the occupational health and safety service and the UWV. Even after the wage penalty(s) imposed and warnings from company for dismissal, the employee failed to act. The court ruled on 6 March 2024 that the employee had acted seriously culpable, as she had failed to fulfil her reintegration obligations.
Conclusion
A request for seriously culpable action by the employee involves exceptional cases. If you are faced with this, we recommend that you hire an employment lawyer.
More information
Would you like to discuss these cases or do you have another legal question? Please do not hesitate to contact GMW Lawyers.
Roos van Zaltbommel works as a lawyer in the Employment & Pensions section.
Main photo: Shutterstock
by THOLEditor | Jan 2, 2024 | Features, Finance, Legal, Work
The wording of a non-compete clause is often very broad. This means there is a high chance that a non-compete clause will be a problem when you want to apply for a job with a new employer. Especially if you work in a small and specialised industry.
In this article, I will explain what you can do if you want to work for another employer that falls under the scope of your non-compete.
1. Is the clause legally valid?
Dutch law lists the requirements that a non-compete clause must meet to be legally valid: it must be in writing and the employee must be over the age of 18.
2. Legal action
It is possible to take legal action and ask the court to terminate the non-compete clause. The court can then dismiss the non-compete and set it aside completely or partially. In the case of partial termination, for example, the term for which the non-competition agreement was agreed upon can be shortened.
The judge will determine whether you can be held to the non-compete clause. The court will assess whether you would be unfairly disadvantaged by the non-competition clause in relation to your employer’s interest to be protected. The retention of employees may not in itself be part of your employers’ interest to be protected. The non-compete clause is designed to protect the employer’s business assets from impairments The mere fact that an employee goes to a competitor does not automatically mean that business assets are also affected.
When determining whether the non-compete clauses should be (partly) waived, the judge weighs the interests of you and your employer. The judge will look at all the circumstances of the situation, for example:
- the degree of attachment to the industry;
- the possibility of a position improvement for you;
- your personal circumstances (family/living conditions/affiliation to region);
- the investments that your employer has made in you;
- the question of who initiated the termination;
- whether your new position involves a lot of competition-sensitive knowledge.
Besides this, the judge also looks at how broadly the non-compete clause is worded. In the case of a very broadly worded non-competition clause, the judge will more quickly rule that it must be annulled.
3. Advice
My advice is not to violate the non-compete clause without your employer’s consent. Especially considering that there is probably a penalty clause applicable. And do note that the penalty is due as soon as you breach the non-compete.
It is good to talk to your employer first. In practice, we often see that an employer is willing to (partly) waive the clause. You can then also refer to your interests. If this doesn’t work, you could start court proceedings and ask a judge to waive the non-compete clause.
More information
Would you like to discuss anon-compete clause or do you have another legal question? Please do not hesitate to contact GMW.
Roos van Zaltbommel works as a lawyer in the Employment & Pensions section.
by THOLEditor | Dec 19, 2023 | Features, Finance, Legal, Work
What constitutes sexual transgression and what sanctions are appropriate? Is sending heart emojis to a colleague sexually transgressive behaviour? And if so, is dismissal an appropriate sanction? This question was referred to the courts in late 2022.
Complaints
The employer in the lawsuit in question was a well-known, nationwide clothing store chain and the employee was the store manager of the Amsterdam branch. The store manager is the most senior manager of the Amsterdam branch. At a certain point, this manager sent four heart emojis to his younger, subordinate colleague via WhatsApp. This colleague filed a complaint in response.
Investigation
Because of this complaint and earlier complaints received from other colleagues about the manager, the employer launched an investigation. This reportedly showed that the manager had displayed sexually transgressive behaviour. Accordingly, the employer asked the court to terminate the employment contract.
Dress
Although several complaints had been received about this manager, the court only found evidence that the manager had sent heart emojis to his subordinate colleague via WhatsApp. He did this in response to a holiday photo of the colleague, in which she was wearing a short dress. The court did not qualify the sending of this message in this case as sexually transgressive behaviour and therefore upheld the employment contract.
Awkward
The court further ruled that while it is understandable that such a message is awkward for a subordinate, young female colleague, this does not mean that the manager meant his messages to be sexual or flirtatious. After all, hearts are used in communications – apart from showing love – to indicate that something is nice.
The fact that the manager was permitted to retain his job in this case does not mean that sending heart emojis is permissible in every situation. What is more, the court noted that a manager could be expected to understand that such a message could make the recipient feel uncomfortable, and should refrain from doing so in future.
Conspiracy
That the conduct in this case did not lead to dismissal was partly because the manager had sent the message several years previously. The court also saw strong evidence that the other complaints stemmed from a conspiracy between the complaining employees against the manager. They were said to be outraged by a reorganisation that was advantageous for the manager. Moreover, it was not sufficiently established that the other complaints were justified.
Amsterdam District Court 19 December 2022, ECLI (abridged):7677
Evidence and witnesses
Complaints about a colleague’s transgressive behaviour often consist of one or more statements from victims and witnesses. It is important that an organisation handles such complaints carefully, both for the victim and the accused.
Listen to those involved
Ideally, there should be a code of conduct in place within the organisation, as well as a clear complaints procedure. Both the victim and the accused should be given the opportunity to give their respective accounts. It is important that the complaint is investigated as soon as possible so that prompt and appropriate action can be taken. For example, in the above ruling, the complainants, the accused and other witnesses were not heard by the court until the hearing. It is also possible – and advisable – for an employer to listen to those involved and have them sign a written statement.
Early stage
The sooner statements are made after an incident, the more reliable the statements will be. The court can then determine whether it is still necessary to hear the witnesses during the hearing. GMW lawyers can advise you at an early stage on what steps to take.
More information
Do you have a legal questions or would you like more information?Please do not hesitate to contact GMW
Amber Willemsen is a lawyer within the Employment law section.
by THOLEditor | Nov 23, 2023 | Features, Finance, Legal, Work
Many employees who want to move to another EU member State want to bring their pensions with them. Even a lump sum should be possible. However, the Dutch State made this practically impossible.
This week the EU Court found that this is a violation of the EU Treaty, the free movement of workers. This will have serious implications for those who want to move their pensions abroad. Professor Hans van Meerten a professor EU Pension Law GMW advocaten explains further.
The case
It should be recalled that the social protection of workers is one of the imperative requirements in the general interest which may justify a restriction on the exercise of the fundamental freedoms recognised by the EU Treaty.
The need to guarantee lifelong pension benefits as required by the Netherlands – can therefore be invoked to justify a restriction on the free movement of workers.
However, in order to satisfy the requirements of EU law, the national legislation must be suitable for achieving the objective pursued and must not go beyond what is necessary for that purpose.
By imposing certain obligations on the pension institution established in a Member State other than the Netherlands to which a worker who takes up employment in that other Member State wishes to transfer the value of his pension rights, the national legislation at issue cannot, of itself, prevent the risk that the worker will opt to receive his pension in a lump sum and cannot guarantee that the worker will receive his supplementary pension regularly during his retirement.
Beyond what is necessary
Moreover, the legislation in question goes beyond what is necessary to achieve that objective. As soon as workers leave the Netherlands to take up employment in another Member State and transfer the value of their pension rights to that State, it is for that other State to decide whether or not to allow all or part of the pension to be paid to those workers in the form of a lump sum.
If that amount is lost or spent in full, it is for that State to bear the financial burden of that loss, if any. In this case, the value of the pension rights after the transfer would no longer be income from Dutch sources, but income from the new country of residence.
Consequently, the restriction on freedom of movement for workers in question is not justified.
Comments
The Dutch Pension legislation is in many respects not EU proof. There are several cases and complaints pending. The above judgements of the EU court strengthen these complaints.
More information
For questions please contact our lawyer and professor EU Pension Law Hans van Meerten.
About professor Hans van Meerten
Professor Hans van Meerten is a specialist in the field of pension law, financial law and EU law.
He assists employees, self-employed persons, employers, pensioners, works councils, pension funds and asset managers. Nationally and internationally. Hans always assesses how Dutch regulations relate to the underlying EU law. Many legal issues have a European law background. Hans has regularly successfully argued that Dutch regulations should give way to European law provisions.
Hans frequently gives presentations and lectures at home and abroad on the above-mentioned areas of law. Current subjects he highlights are the Dutch pension agreement and European pension regulations (PEPP, IORP and the EU Charter of Fundamental Rights).
In addition, Hans is a part-time professor of pension law at Utrecht University and supervises several assistants in training.
by THOLEditor | Feb 24, 2023 | Features, Legal, Work
Before the Pandemic, working from home was not facilitated by all employers. During the Pandemic, we proved altogether that (long-term) working from home and/or working at a different location than the office can work very well. It also had many positive consequences. For example, people could live further away from work if they did not have to come to the office every day. And not having to commute every day reduces the pressure on the environment. Therefore, some companies kept (one or more) standard ‘work from home’ days and other employers even offered as an employment benefit the opportunity to work from a different – sometimes foreign – location. But what are your rights if your employer does obligate you to come to the office (again)?
Employment condition and working from home request
In your employment contract or the collective labour agreement (CLA or in Dutch ‘CAO’) a right to work from home can be included. In that case, your employer cannot change this right unilaterally without cause. Only if your employer has an overriding interest in revocation of your right to work from home, he might be allowed to do so. Always consult a lawyer if your employer wants to change your employment conditions unilaterally.
If your employment contract or CLA lacks a right to work from home, you can file a request for working from home. You have to meet the following conditions:
- On the desired starting date of working from home you are working for your employer for at least six months;
- The company you work for consists of at least ten employees;
- Your request is in written form;
- Your request is done at least two months before the desired starting date.
In exceptional cases, such as a child or partner that suddenly gets long-term ill, the condition of doing the request at least two months before the desired starting date and having been employed for at least six months is not applicable.
Your employer can only deny your request if he has a good reason for this. For example, when serious problems occur in the working schedule due to you working from home. The denial must be made known to you in writing within one month of your request. Without a written refusal within one month of your request, your request is deemed to be accepted and you are allowed to work from home.
Working from home safely and allowance
As in the office, it is the employer’s obligation to ensure a safe workplace. One of the ways to ensure this, is to offer you ergonomically sound work equipment, such as a desk and office chair, (ergonomic) mouse and keyboard etc. Your employer can also give instructions on how to work safely. Of course, it is also your responsibility to ensure a safe working environment, taking enough breaks and adopting the proper working posture.
To help reimbursing the costs that would not occur when working in the office, such as extra costs for water and electricity at home, the government allowed the employer to provide a working from home allowance of up to €2,15 per day.
Amber Willemsen is a lawyer specialised in employment law at GMW Lawyers. She often assists expats in a variety of employment law matters. Phone.: (+31) 63 980 78 78, e-mail: a.willemsen@gmw.nl.
Image provided by GMW.
