In recent weeks, we have already written a few times about summary dismissal. In this ruling, the employee was summarily dismissed because the employer claimed that the employee had not requested or obtained permission to take leave. Curious about what happened and how the judge ruled?
On a number of occasions, discussions took place between the employer and employee concerning the employee's failure to arrive at work, or arrival at work late, and the lack of consultation with the employee in this regard. The employer sent the employee letters with an official warning on 4 February and 26 May 2021. On 30 May 2021, the employer sent the employee a letter stating that he/she needed to take leave.
The employer then asked employee with whom he had consulted to have time off on Monday 31 May. Employee then informed that he did not know anymore. The employer then informed the employee that if he did not show up for work on Monday, it would be regarded as unauthorised leave.
The employee did not appear at work on 31 May 2021.
On 1 June 2021, the parties had a conversation with each other. In the letter that followed, the employer confirmed that it had summarily dismissed the employee on 31 May 2021. The reason given was the unauthorised taking of leave in combination with the two previous official warnings.
The employee objected to the instant dismissal and initiated legal proceedings, requesting that the employer be ordered to pay him the transitional allowance and a fair compensation.
The Subdistrict Court established that, on the one hand, the employer had warned the employee by means of letters, but that, on the other hand, it had not used the same tone in its day-to-day communication. Therefore, less weight can be given to the letters.
Next, the communication between the parties dated 30 May 2021 is important. This shows that on that day, the employer did not give the employee permission to take leave on 31 May 2021. However, the employer confirmed that it knew that the employee had been given community service and that the leave in question was intended for that purpose.
In the opinion of the Subdistrict Court, the employer was required, in all reasonableness and as a good employer, to ensure that the employee could carry out his community service by taking leave. This is what the employer did the first two times. The fact that on 30 May 2021 the employer may have been caught off guard by the day off which the employee wanted to take, does not alter this.
According to the subdistrict court, the above led to the conclusion that the employer had no urgent reason to dismiss the employee with immediate effect, or at least that, in view of all the circumstances, this would be too harsh a remedy. The claimed transition allowance and fair compensation are granted. Read the full judgment here.
Would you like to know more about this judgment or do you have any other employment law questions, for example about good employment practice or about instant dismissal? The lawyers and mediator at SPEE advocaten & mediation will be happy to help you.