The Limburg Subdistrict Court ruled last month on a very childish 'joke': a VDL Nedcar employee pulled down the trousers of a female colleague on the shop floor, literally exposing her bottom. This led to immediate dismissal of the ‘joker’. The latter argued that there was a 'joke culture' on the shop floor, but to no avail. Read more here:
Facts
Employee, in his early forties, had worked as a production employee at VDL Nedcar since 19 February 2018. In September last year, the employee went behind a female colleague during working hours and during the production process and pulled down her shorts. This left her bare bottom in front of her colleagues.
Een dag later heeft de leidinggevende met de werknemer gesproken en bood de werknemer excuses aan voor de ‘slechte grap’. Nog een dag later werd de werknemer op staande voet ontslagen. De werknemer is vervolgens naar de kantonrechter gestapt om dit aan te vechten en zijn baan terug te krijgen. Nedcar voert verweer en verzoekt om voorwaardelijke ontbinding van de arbeidsovereenkomst, mocht het ontslag op staande voet toch geen stand houden.
The employee claimed that there was an ‘own culture with own norms and values’ within the production company. Within this culture, crude jokes would often be made between colleagues and managers. The latter would take part in it themselves. According to the employee, similar behaviour takes place more often: previously, a colleague would have pulled down the employee's trousers and a coordinator would have grabbed him in the crotch. In short: according to the employee, his behaviour fits within the norm in the workplace and therefore the summary dismissal is not justified.
Judgment of the Subdistrict Court
However, the Subdistrict Court certainly did not agree with the employee's arguments: any evidence of the existence of an ‘own norm’ or a ‘culture of these kinds of jokes’ is lacking. But even if such incidents had occurred more often, the judge does not consider that relevant to the assessment of this case. The employee himself has stated that he did not report those incidents to his supervisor and Nedcar's management has denied knowing about them. Therefore, the reasoning ‘the management does not intervene and therefore it is allowed’ does not help the employee.
Furthermore, Nedcar has sufficiently demonstrated that on the shop floor the norm is to treat each other with respect. The company regulations point to this, the employee has followed a training course (including one on good manners) and there are signs in the production hall about the desired standards and manners. According to the Subdistrict Court judge, pulling down a female colleague's shorts in the presence of colleagues is far from respectful.
The employee still stated that the female colleague in question would have laughed at the incident, but Nedcar replied that the colleague was very upset, ashamed and cried. In this respect, the Subdistrict Court ruled that the question of how the victim of 'the joke' experienced this is not of essential importance for assessing the seriousness of the fact. If the colleague had not been hit, it would have been a matter of luck. After all, the employee did not argue that he knew she would not be affected by it. Furthermore, the Subdistrict Court indicated that it was more logical that an employee would indeed be very upset by such an incident.
Final Remarks
According to the Subdistrict Court, there is indeed an urgent reason for a summary dismissal: a colleague has been exposed in a humiliating way and she will never forget it. Moreover, it is likely that this will continue to be alluded to in the workplace in the future. The sanction of summary dismissal is therefore appropriate.
The employee also argued that the dismissal hit him hard because he had debts that he was now unable to pay. But the Subdistrict Court ruled that these were mainly traffic fines that had already been imposed earlier and had been increased for failure to pay on time. The same applies to unpaid healthcare premiums. In short, the debts have no causal link to the dismissal. Nor do the debts mean that the summary dismissal should not be granted.
You can read the full judgment here.
Our advice
Employers should handle the heavy-handed remedy of summary dismissal with caution. After all, an employee loses his or her right to an unemployment benefit because of culpable unemployment. However, this ruling shows that summary dismissal can be used in the event of inappropriate behaviour, and will also stand up in court.
Legally, there must be an urgent reason for summary dismissal. Moreover, the summary dismissal must take place without delay (an employer cannot simply wait a few days without reason) and the employer must inform the employee of the urgent reason without delay. The dismissal letter must be carefully worded. If these requirements are not met, the summary dismissal may still fail in court. Employers are therefore well advised, if an unappropriate situation arises in the workplace, to engage an employment lawyer immediately before the dismissal is given. Employees facing summary dismissal are also advised to engage a lawyer immediately instead of waiting. Do you also have questions on this topic? Call the employment lawyers at SPEE advocaten & mediation.