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12 Jan 2023 Is private refuelling with business fuel card grounds for summary dismissal?

An employee's wife used the company car's business fuel card to refuel privately without the employer's permission.

When the employer finds out, the employee is summarily dismissed for theft. There is insufficient trust for continued employment. The employee disagrees and asks the court to annul the summary dismissal. How does the subdistrict court rule on this?

The facts

The employee joined the employer from 1 May 2022 for a term of 12 months. The employer provided the employee with a company car and fuel card. In this connection, the parties have entered into a "Company Car Agreement", which provides that the fuel card, which is linked to the car, may only be used for business purposes.

In mid-June, the employee reported sick due to an ankle injury. As a result of that injury, the employee was unable to drive a car. A few days later, the employee was able to return to work and went to work in the company car. The night before, the employee's spouse filled up with fuel for an amount of about €50 using the private car and paid for this refuelling with the employer's business card. The employer subsequently found this out and summarily dismissed the employee just under a week later.

The refuelling had come to the employer's attention because the employee was home on that day due to incapacity for work and the employee himself had stated that he was unable to drive. The employer had subsequently contacted the gas station manager. CCTV footage showed, that on that date and time added fuel to a car other than the company car and paid for the refuelling using the company fuel card, which the employer considered to be theft.

The employee protested the dismissal, repaid the amount to the employer and instituted proceedings seeking annulment of the instant dismissal.

Position of the employee

According to the employee, the employer was wrong to proceed with instant dismissal, as there was no urgent reason.

Due to his ankle injury, it was not possible for him to come to work by himself. He had therefore agreed with his wife that she would take him to work in the private car, as she was not allowed to drive the company car. Since business kilometres would be made, he saw no objection to his wife using the business fuel card. It was also not clear to him that his wife would not be allowed to pay using the fuel card. Moreover, he intended to report his wife's refuelling that day. Since he was able to come to work in the company car provided to him, he accidentally forgot to make this report. There was therefore no question of any intention to take away company property, and immediate dismissal would be disproportionate given the circumstances of the case.

At the court hearing, the employee withdrew the primary application to set aside the summary dismissal. The employee therefore acquiesced in the dismissal, so that it was established in law that the employment contract between the parties had ended. The subdistrict court therefore had to assess the subsidiary requests seeking an award to the employee of transitional compensation, fair compensation and compensation for irregular termination.

The court's assessment

The primary issue in this case was whether the summary dismissal given to the employee was justified. In order to assess whether there is an urgent reason justifying termination of the employment contract, all the circumstances of the case must be taken into account, taken together and in relation to each other, including the nature and seriousness of what the employer considers to be an urgent reason, and further, inter alia, the nature of the employment relationship, its duration and the manner in which the employee performed the employment relationship, as well as the employee's personal circumstances, such as his age and the consequences that the summary dismissal would have for him.

The court stated first, that there was a breach of the agreement in place between the employee and employer. This was because the employee's spouse had refuelled with the private car using the business fuel card without the employer's consent, while, moreover, the fuel had not been used for business mileage but had benefited entirely for private use of the private car. This was not permitted.

According to the subdistrict court, the employer was justified in doubting the employee's integrity and that the employer no longer had confidence in him after the incident. Importantly, the employee had not reported the refuelling to his employer. Nor had the employee given any explanation during the dismissal interview, which took place a week after the refuelling, as to how and why the refuelling took place. The employee claimed that "the refuelling had been some time ago now", that he "could not remember one, two, three whether refuelling had taken place on 21 June 2022, and if so, by whom". According to the employee, paying for fuel with the fuel card for the private car was an exceptional, one-off, event. According to the sub-district court, it was therefore hard to believe that barely a week later he could remember little or nothing about this. In any case, it would have been up to the employee to be open during that conversation and give a correct reading of the facts, precisely because he apparently did have this intention at an earlier stage, but had forgotten to mention it. If he had actually been brought by his wife in the private car, he could also have advanced the fuel himself and then claimed it from his employer.

Another factor was that the employee had not even been employed for two months yet, so this was a (very) short employment period and the employee had not yet earned his spurs. According to the subdistrict court, the fact that the amount of the refuelling had been repaid in the meantime could not lead to a different judgement. By then, trust had already been seriously damaged.

The conclusion was that, by his actions, the employee had created such a situation that, taking into account all circumstances of the case, including the personal circumstances he had mentioned, but also the (very) short duration of the employment, he had damaged the trust to such an extent that the employer could not reasonably be required to continue the employment contract. In the subdistrict court's opinion, the employer had therefore proceeded to give the instant dismissal on good grounds. No compensation was awarded to the employee.

Read the full judgment here.

Are you an employer or employee and do you have questions about summary dismissal or other employment law issues? Then feel free to contact one of the employment lawyers at SPEE advocaten & mediation. We will be happy to help you further.

SPEE advocaten & mediation Maastricht

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