26 Oct 2021 May the employment contract of an employee who refuses to wear a mouth mask during her work be terminated?
The corona pandemic and the various measures that have come into force in that context regularly cause discussion, also in the work environment. This case concerns an employee who refuses to wear a mouth mask and moreover expresses negative views on social media about the employer's policy. Will her employment contract be dissolved by the court, or not?
Since 15 November 2019, the employee has been employed by FamilySupporters Noordkop B.V. in the position of office manager. In an email dated 29 September 2020, addressed to all employees of FamilySupporters, the director of FamilySupporters informed, among other things, that due to the corona crisis in the various branches, the wearing of a mouth mask will become mandatory, upon entry, in the corridors and stairs. It was also announced that from September 30, 2020, mouth guards will be available at all branches. In an email dated 30 September 2020, the director of FamilySupporters informed that wearing a mouth mask in the branches is mandatory except "when sitting".
From 1 December 2020, the national government has made it compulsory to wear a mouth mask in all indoor public places. FamilySupporters has paid attention to this in its communication with its employees. On 3 December 2020, the director noticed that the employee appeared at work and walked through the hallway, kitchen and office of the FamilySupporters facility in Den Helder without wearing a mouth mask. The managing director addressed the employee and asked her to wear a mouth mask. The employee refused and stated, among other things, that she could not wear a mouth mask for health reasons. The director then asked the employee to request a medical certificate from her GP. In a report of the conversation on 3 December 2020, the Director noted that the employee was very angry and agitated and that he found her attitude very annoying and unacceptable.
At the beginning of December 2020, the employee posted a message on Facebook, also visible to third parties, in which she wrote, among other things: "I will never forget.... 04-12-2020 the day that I was FORCED to cover my face, against my will (& fundamental right!), by a man of all people". In an email dated 10 December 2020, the director of FamilySupporters referred to a conversation with the employee on 9 December 2020 about the conflict with the aforementioned colleague and pointed out to the employee that her attitude and statements were offensive and insulting. In an e-mail dated 11 December 2020, the employee addressed the director of FamilySupporters and mentioned, among other things, that she cannot wear a mouth mask and that she feels intimidated and discriminated against by the director and the aforementioned colleague.
On 14 December 2020, the employee reported sick. On 21 December 2020, the employee reported better. From that moment onwards, she worked exclusively at home.
Between January and June 2021, the parties tried to resolve their dispute through mediation. This did not succeed. FamilySupporters requested that the employment agreement with the employee be dissolved on the e-ground primarily and, in the alternative, the g-ground.
The judge is of the opinion that FamilySupporters has the power to give reasonable instructions regarding the performance of work and to promote good order in the company.
FamilySupporters was therefore allowed to impose the obligation on its employees to wear a mouth mask in the branches and at the workplace, partly in line with national guidelines.
It is an established fact that the employee resisted the obligation to wear a mouth mask and continued to do so. It is also an established fact that she repeatedly refused to wear a mouth mask at the workplace and that conflicts arose about this with the director and a colleague. The parties have accused each other of offensive and insulting behaviour, as well as intimidation and discrimination.
In view of this alone, the Subdistrict Court cannot but conclude that the working relationship has been permanently and irreparably disrupted. FamilySupporters is also supported in its argument that the necessary basis for trust has been lost, as the employee has expressed negative views about FamilySupporters and its director in various reports. FamilySupporters is also correct in stating that the employee has not substantiated her claim that she cannot wear a mouth mask for medical reasons, or has not wanted to substantiate it, despite several requests to do so. It would have been up to the employee to do so.
FamilySupporters did attempt to repair the relationship through mediation, but to no avail. In light of this, the reinstatement of the employee is no longer possible, also considering the fact that FamilySupporters is a small organisation and it has not become apparent which position(s) the employee could hold in which the disruption in the working relationship - between her and the managing director, who is also her brother-in-law - would no longer play a role. The request of the employee to order FamilySupporters to pay a transitional allowance can be granted.
Discussions about wearing mouth masks and other disagreements about corona measures unfortunately lead to conflicts on a regular basis. Mediation, as was attempted in this case, may offer a solution. If this does not work, then it is, of course, also possible to go to court. The lawyers and mediators of SPEE advocaten & mediation will be pleased to help you in such cases.