An employee transfers large sums of money from his employer to himself and is summarily dismissed for this reason. His employer then starts proceedings to recover the stolen sums. In the proceedings, the employee invokes his gambling addiction. Whether that was to any avail, you can read here.
What are the facts?
Employee worked as a financial manager at Hydromaster Propulsion BV, a maritime company in Rotterdam, from July 2019. During his employment, he transferred large sums of money from his employer to the bank accounts of himself and his own companies. Not surprisingly, employee was summarily dismissed after discovering this.
What are the proceedings about?
Hydromaster commences writ proceedings and claims repayment of the stolen amounts. The employer also claims the investigation costs incurred and the seizure costs. Employee in turn claims (conditional) wage payment, a transition allowance and damages.
What does the subdistrict court rule?
The judge made short shrift of the employee's conduct: he had to repay undue payments to his former employer (€797,998.40), damages for credit card expenses (€89,554.56), investigation costs (€18,123.17) and liquidated damages over the notice period (€6,898.06). The employee was also ordered to pay the legal costs.
The employee's defence that he had a gambling addiction and that there was therefore no intent does not help him. On this, the court rules that while it may be the case that the employee used his employer's money to provide for his gambling addiction, it cannot be judged or established that he made the payments to himself "under the influence" of his gambling addiction, in the sense that his addiction prevented him from acting otherwise than he did. It cannot be said that gambling addiction controlled the employee's behaviour at the times he made the transfers. What counts here is that he did not make the payments in panic or impulsively, but rather in a very shrewd manner, by falsifying invoices, making duplicate payments, using false ascriptions and payment descriptions and so on.
The argument that the employer itself was also to blame for the course of events because there was no (proper) control mechanism also fails. According to the court, this is "the world upside down": in principle, an employer may trust its employees and there was never any reason to doubt the reliability of this employee. Even the employee's girlfriend, parents, family and friends knew nothing about his gambling addiction. Furthermore, there were controls and two external auditors, but even they were fooled.
Read the full judgment here.
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