Search
Close this search box.
25 Aug 2021 Administrative employee immediately dismissed for fraud

Employee must pay damages (€ 318,217.01) to employer based on unlawful act. The employee argued that he had a gambling addiction and that the fraudulent acts could therefore not be attributed to him. What does the Subdistrict Court think about this?

Facts

On 18 July 2005, the Employee entered the employment of Spandex Benelux B.V. ('Spandex') in the position of administrative assistant. In this position he dealt with accounts payable. On 11 September 2020, the controller of Spandex discovered irregularities in the financial administration. In response, Spandex instructed Hoffmann Bedrijfsrecherche B.V. (hereinafter Hoffmann) to carry out an independent investigation into the existence and extent of the fraud established. On 14 September 2020, Spandex suspended the employee pending the Hoffmann investigation. On 15 September 2020, a conversation took place between the employee and two employees of Hoffmann. During this conversation, the employee acknowledged that he had committed fraud and theft on a large scale. A report of this conversation was drawn up. Spandex then summarily dismissed the employee on 15 September 2020. On 18 September 2020, Spandex placed a prejudgment attachment on the balance of the employee's bank account and on real estate. The parties dispute whether employee is obliged to compensate the damage.

Judgment

Employee acknowledges the existence of fraud and unlawful conduct and does not dispute that Spandex has suffered damage as a result. However, he does dispute that the unlawful actions can be attributed to him. According to Employee, his gambling addiction is such that his thinking, willingness, judgments and purposive actions have been so drastically affected that his actions cannot be attributed to him, or only to a lesser degree, because his disorder/addiction predominantly governs his actions. In the opinion of the Subdistrict Court, there can be such an addiction that someone's thinking, feeling, willingness, judgments and purposive actions are so drastically affected that the person concerned cannot be blamed for his actions, because his disorder predominantly controls those actions. However, this requires that the addiction be accompanied by or result from (other) mental disorders, as a result of which the person concerned must be deemed no longer capable of freely determining his will (ECLI:NL:GHARL:2013:BZ4789). The fact that in recent years the employee had a serious form of gambling addiction does not imply, at least not automatically, that he was unable to freely determine his own will. Nor has the employee provided any further substantiation for this defence. It has not been established, let alone made plausible, that, in addition to his gambling addiction, he also suffered from mental disorders as referred to above. In addition, the employee's actions were deliberate and sophisticated over a long period of time. The Hoffmann interview report furthermore shows that the employee himself stated that he started committing fraud because, in his opinion, he was wrongly not being paid a bonus. The money stolen from Spandex was also used to buy presents for his then wife and to renovate the former marital home. After the controller had confronted the employee with the irregularities on 11 September 2020, the employee tried to empty his account on 12 and 13 September 2020 by withdrawing €1,000 twice and transferring €3,500.26 to his son's bank account. The employee's defence therefore does not stand up. As the unlawful conduct is not otherwise contested, the requested declaratory judgment is granted. Spandex is requesting that employee be ordered to pay the sum of €318,217.01 as compensation for the damage it has suffered as a result of the unlawful actions of employee. Employee acknowledges the aforementioned amount of damage, so that the request is ready to be awarded. At the time when Spandex called in Hoffmann, it only knew, due to the employee's position, that it was probably the employee who had stolen money, but it had no idea about the method, extent and duration of the fraud committed. The Subdistrict Court deemed it reasonable for Spandex to engage an independent agency to conduct an investigation into the employee's actions. It also follows from this investigation that the fraudulent conduct of the employee was not easy to discover and the investigation into the extent of the damage also took some time. The Subdistrict Court is of the opinion that the costs have been sufficiently substantiated. Spandex has submitted an invoice for the period immediately following the discovery of the fraud, the employee also acknowledges having spoken with Hoffmann about the fraud and the procedural documents show that Hoffmann drew up a report on this. Furthermore, the amount of the costs does not appear to the Subdistrict Court to be unlawful. Now that it is undisputed that Spandex can set off the VAT on the invoice of Hoffmann, the aforementioned damages will be awarded to an amount of € 3,994.52. The costs of attachment of € 245.35 will also be awarded. Now that it is undisputed that Spandex was right to summarily dismiss the employee and that the latter amount is no longer in dispute, the fixed damages of € 2,666.86 gross are awarded.

Summary

Despite his gambling addiction, the fraudulent actions are still attributed to employee and he must compensate the damage suffered by employer. Would you like to know more about this case or do you have questions about another employment law case? SPEE advocaten & mediation will be happy to assist you.

SPEE advocaten & mediation Maastricht

Search

Recent articles