07 Oct 2021 Captain cannot simply be thrown overboard by employer
This week, we will inform you about a much-discussed case in which the Rotterdam District Court ruled last month. The outcome is slightly different from what you might expect.
What were the facts of the case? Since the end of 2011, the employee has been employed by the employer as a captain. After a trip from the port of South Korea in the period 11 July - 11 November 2020, the employer received signals that the employee had caused a number of incidents. As a result, the employer initiated an investigation and on 3 December 2020 a meeting with the employee took place. It emerged that some of his colleagues were not always comfortable with the employee's communication style and that, furthermore, the employee had the habit of sunbathing completely naked on the ship's upper deck and of having himself massaged by sailors on board in return for payment.
However, the employee defended himself by stating that he clearly indicates at which times he is on which deck. His colleagues have never pointed out to him that they find this behaviour annoying. The captain admits that he allows himself to be massaged by sailors in order to relax. But according to him, there is no pressure involved; he always asks the personnel about their willingness to do so.
The employer is of the opinion that all this is not in accordance with the professional standards and values of the company. For this reason, the decision was taken to transfer the captain to another ship. A number of further talks were also held with the employee, in which it was again indicated that he should modify his behaviour. In an e-mail dated 17 January 2021, the employee indicated that he would do so, with the comment that 'times have apparently changed'. The employer draws the conclusion that the captain does not show any understanding of the seriousness of the situation and sends him a termination proposal by e-mail on 22 January 2021. This request was initially accepted by the employee, but was later withdrawn. The employer instituted proceedings and requested the subdistrict court to dissolve the employment agreement with the captain on the e-ground (culpable action by the employee), or the g-ground (disrupted working relationship) or the i-ground (combined ground).
Judgment of the Subdistrict Court
E-ground (culpable acts or omissions by the employee)
The sub-district court agreed with the employer that sunbathing naked on board the ship and allowing oneself to be massaged by one of the ship's crew, regardless of whether a fee is paid for those massages, constituted undesirable conduct on the part of a captain. Such behaviour not only undermines the employee's authority as captain and highest-ranking member of the ship's crew, but is also out of step with the current times, partly in view of the 'Me-Too' debate.
However, as the employee has never been called to account for this behaviour before, even though he has been displaying it for years, has promised to stop, and furthermore as there is no evidence whatsoever of sexually transgressive behaviour, the Subdistrict Court is of the opinion that it cannot be concluded that there is a full-fledged e-ground.
G-ground (disrupted working relationship)
According to the employer, the employee has a total lack of self-reflection. Although he has acknowledged that he will stop recreating naked and receiving massages, the employee is completely unaware that his behaviour was inadmissible. According to the employer, he can no longer entrust the ship and its crew to the employee as captain. However, the Subdistrict Court did not accept this lightly: the employer had only had two talks with the captain concerning this matter. He was also given no opportunity to improve or adjust his behaviour.
The Subdistrict Court therefore found that the employer did not make any constructive and realistic attempts to examine whether the disturbed relationship could still be repaired. Under these circumstances, it has insufficiently been established that the disruption is permanent and irreparable. This means that the request on the g-ground cannot be granted either. The same applies to the i-ground (the combination ground).
So the end of the story is that the captain remains in service. You can read the entire ruling here (in Dutch).
Do you also have questions about the dissolution of employment contracts, culpable acts or omissions by employees or disrupted labour relations? The employment lawyers at SPEE advocaten & mediation will be happy to help you on your way.