An employee is dismissed with immediate effect by his employer, because he travelled to Poland after being expressly forbidden to do so by his employer, in connection with corona measures and obligatory quarantine after his return. Does this dismissal stand?
Facts
The employee became employed by the employer on 15 October 2019 in the position of forklift operator for the duration of one year. The parties have extended this employment contract for the period from 15 October 2020 to 13 March 2021.
By letter dated 7 November 2019, employee received an official warning for two incidents. Firstly, on Wednesday 6 November, the employee angrily grabbed his colleague's throat during an argument. According to the employer, this came across as very aggressive and threatening to other colleagues who witnessed it. During an evening shift, the employee also allowed himself to be wrapped in foil by the old wrapping machine to test whether he was strong enough to remove the foil independently. Both incidents are unacceptable to the employer.
By letter dated 24 January 2020, a final warning was given by the employer to employee for sticking SSCC labels on the wrong pallet on 14 and 17 January 2020. This letter also stated that measures would be taken in the event of any subsequent misconduct. By letter dated 4 May 2020, employer officially warned employee (again) for the last time. It accused him of being seen several times with a phone in his hands, while the use of mobile phones in production is not permitted, of failing to keep a sufficient distance from colleagues during the break in connection with COVID-19, and of using obscene language.
As announced, the employer subsequently adjusted the employee's deployment within the organisation and indicated that, in the event of a subsequent breach, it would proceed to terminate the employment contract with immediate effect.
At the beginning of October 2020, the employee informed the employer that he would be working for the last time on 4 December and that he and his wife would be leaving for Poland afterwards. He asked the employer for a letter stating that his contract would not be extended so that he could claim unemployment benefit. The employer refused to comply, in response to which the employee indicated that he would serve out his contract and then leave the company. During a conversation with the employer's personnel adviser, the employee indicated that he would be travelling to Poland on the weekend of 5 and 6 December 2020.
Partly because of the prevailing corona measures (Code Orange) and the associated quarantine period, the employer did not approve. If the employee travelled to Poland anyway, this would result in immediate dismissal, given the earlier formal warnings. The employee finally travelled to Poland and was subsequently dismissed with immediate effect, by letter of 8 December 2020.
The employee requested the Court to order the employer to pay fair compensation, fixed damages and the transitional allowance.
Judgment
The court is of the opinion that the dismissal stands.
The employer has repeatedly warned the employee over the course of time about behaviour which it considers unacceptable. These warnings were given in writing and each time the employee signed for receipt. It is also an established fact that after the third warning, the employee was internally transferred to another department as a sanction.
It was neither argued nor demonstrated that the employee protested against this transfer. The employee argued that the work had been modified due to his temporary incapacity for work, but this was not substantiated anywhere. According to the Court, the warnings issued by the employer were of varying seriousness. However, they were followed up relatively quickly in the period from November 2019 to May 2020, and in view of all the reproaches made in that short period, the Court endorsed the employer's view that the employee could no longer afford to make a mistake after May 2020.
Employee's position cannot be filled by working from home, so that for that reason alone employer had a compelling business interest in not allowing employee to travel to Poland, considering the ten day quarantine upon return. According to the Court, all of this together means that the employer had an urgent reason to terminate the employment contract on 8 December 2020 with immediate effect.
The employee's request to order the employer to pay fair compensation and a transitional allowance is rejected.
Conclusion
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