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22 Feb 2023 Buitengerechtelijke vernietiging arbeidsovereenkomst omdat werknemer verschenen is in uitzending Undercover: houdt dit stand bij de rechter?

This ruling concerns an employee (teacher at a school) who started working at the school in question in August 2022, but shortly afterwards was the subject of a broadcast of the television program "Undercover in Nederland". The school terminated the employment contract shortly after the relevant broadcast on the grounds of fraud or mistake. Subsequently, proceedings were brought before the Subdistrict Court, in which the question had to be answered whether the annulment could be upheld and, if not, whether the employment contract could be dissolved on one of the grounds put forward by the school.

What are the facts?

As indicated, the employee joined the school in early August 2022.

On 28 August 2022, the television program Undercover in Nederland dedicated an episode to employee. The broadcast was summarized by the Undercover in Nederland team on its website as follows: "Alberto and his team unmask a man who enters into relationships with large numbers of women, borrows money and then does not pay it back. The amounts involved are huge and he often has relationships with various women at the same time. The ladies in question thought they had found their dream man in him, but all come out disappointed. Alberto confronts him, along with one of the duped women."

The school contacted employee after the TV broadcast and asked him not to appear at the plenary opening of the new school year on 29 August 2022. The parties then entered into discussions on an amicable solution. They did not succeed in doing so.

In his letter dated 19 September 2022, the chairman of the school's Board of Governors, wrote to employee, inter alia, the following:

At the end of August we were surprised by a broadcast of the television program Undercover in Nederland of which you were the subject (...) It became clear to us from the broadcast that the recordings of this program were made in a period before the summer. The application procedure at our school took place in June, therefore after the recordings were made. We believe that during the application procedure, you should have realised that the footage made was likely to be broadcast at short notice and that this could be of interest to us as a (potential) employer. However, during the application procedure, you did not inform us at all that you were confronted and questioned at length by the program maker with his camera crew. You thus failed to inform us of important information within the framework of the application procedure, as a result of which we entered into the employment contract under the influence of misrepresentation. If you did inform us about the aforementioned recordings, we would not have made the choice to hire you. Therefore, we believe that the employment contract was concluded under deceit and/or error, which renders it voidable. (...) However, we are of the opinion that the way in which you have come to public attention as a result of the aforementioned broadcast, whereby you have been publicly known as '[name]', among other things, impedes the adequate performance of your function as a teacher within the school. (...) Because of the above, we hereby annul the employment contract previously agreed between us. Such an annulment has legal retroactive effect. This means that an employment contract never existed between us and that the salary already transferred by us to you has been unduly paid. We expressly reserve the right to recover this salary from you.... (..)

Employer's request

The school requested the Subdistrict Court, insofar as it was irrevocably established in court that the employment contract between the parties still existed, to dissolve this employment contract at the shortest possible notice, without awarding any transitional compensation to the employee, and to compensate the procedural costs between the parties.

Employee's defence and counterclaim

Employee defended against the application, arguing, in brief, that there had been no fraud or mistake in the formation of the employment contract, so that the school was wrong to set aside the employment contract out of court, and employee argued that the requested dissolution should be rejected.

Employee in turn requested the Subdistrict Court, in summary and after reducing the claim at the hearing, to rule primarily that the school wrongfully extrajudicially annulled the employment contract, to reject the request for dissolution and to order the school to pay the agreed salary plus emoluments, plus statutory increase. In the event that the dissolution was granted, the employee alternatively requested that he be awarded the transitional compensation and fair compensation, in addition to the final settlement of the employment with regard to holidays and holiday pay, with an order that the school pay the costs of the proceedings.

What does the Subdistrict Court rule?

With regard to the extrajudicial annulment of the employment contract on grounds of fraud or error, the Subdistrict Court concluded that this was not the case, as a result of which the extrajudicial annulment of the employment contract did not stand. In short, the Subdistrict Court ruled that the case concerned a private matter in respect of which it had not been sufficiently established that the employee knew or should have known that the matter might have implications for his performance as a teacher. The Subdistrict Court further held that the school had not sufficiently substantiated its claim that the employee had induced the school to enter into the employment contract by deliberately concealing the fact that he was the subject of the TV broadcast of Undercover in Nederland, or that any other artifice had been involved.

The Subdistrict Court referred to the Supreme Court's ruling of 7 February 2020 (ECLI:NL:HR:2020:213).

It follows from this judgment, that the same strict requirements are imposed on a reliance on (annulment due to) fraud or error as on a summary dismissal given for the same reason. Indeed, if that were not the case, by setting aside the employment contract for a lack of will, a route would be created to circumvent dismissal law and that is not the intention.

With regard to the dissolution of the employment contract, the Subdistrict Court was of the opinion that, because of the picture of the employee portrayed in the broadcast of Undercover in Nederland, the school could not reasonably be required to continue the employment contract with the employee by putting the employee on probation as a teacher in front of the class. After all, a teacher who has become known as someone who manipulates women on a large scale for money and sex does not fulfil the (moral) role model function that can be expected of a document. This is perhaps even more true in these circumstances, as this is a school in the middle of a deprived neighborhood, with a pupil population that must also be seen, in part, as vulnerable and/or at-risk. The need for an impeccable role model is therefore, if possible, even greater than in a mainstream secondary school.

It is concluded that the Subdistrict Court will grant the school's request and the employment contract will therefore be dissolved. The end of the employment contract will be set at 1 April 2023. This is the date on which the employment contract would have ended on regular notice, less the duration of the proceedings.

The Subdistrict Court further determined that each party will pay its own legal costs.

The request to order the school to pay transitional compensation was granted, as there was no serious culpable conduct, according to the Subdistrict Court. It is clear from the legislative history that seriously culpable acts or omissions by the employee refer to situations in which the employee is aware of the improper nature of his behavior, for example, the situation in which the employee is guilty of theft, making him unworthy of the employer's trust. However, this is not the case in this instance, the Subdistrict Court said.

Instead, the Subdistrict Court sees no reason to award fair compensation to the employee. Fair compensation can be awarded if the termination of the employment contract is the result of seriously culpable acts or omissions by the employer. However, this was not the case in this instance, according to the Subdistrict Court.

Read the full judgment here.

Conclusion

This ruling makes it clear that extrajudicial annulment of an employment contract on the grounds of mistake and/or deceit, is subject to strict scrutiny by the Subdistrict Court and should therefore only be applied, if the alleged mistake and/or deceit, can be conclusively proven. If such evidence is not, or insufficiently, available, it is better to choose another route, such as dissolution of the employment contract. Do you have questions on this or other employment law topics? Then seek advice timely. At SPEE advocaten & mediation, you can turn to highly experienced employment lawyers.

SPEE advocaten & mediation Maastricht

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