A driving instructor is summarily dismissed for having had whatsapp contact with several pupils. The driving instructor starts proceedings because he believes that the summary dismissal is not valid and he denies the (seriousness of the) allegations made by employer. How does the Subdistrict Court view this?
What are the facts?
The driving school where employee works receives various reports/complaints from (parents of) students about the fact that employee maintains whatsapp contact with various students, the nature and content of which would not be in keeping with the professional relationship between a driving instructor and a student.
The employer entered into a discussion with the employee about this and subsequently also sent the employee a written warning, which also stated that if the employee was once again guilty of unauthorized whatsapp contact with pupils, immediate dismissal would follow.
Subsequently, despite the conversation with the employee and the written warning, new complaints are received. The employer then sees this as grounds for immediate dismissal.
What are the proceedings about?
The employee instituted proceedings before the Subdistrict Court, arguing that the summary dismissal was not legally valid. He sought a declaratory judgment or at least annulment of the summary dismissal and also submitted a claim for payment of salary arrears.
The employer submitted a counterclaim, seeking a declaratory judgment that the employee had been validly dismissed with immediate effect and that the fixed damages had rightly been set off against the employee's final settlement. In addition, the employer requested (conditionally), in the event that the employee's application to set aside the summary dismissal was granted, that the employment contract be dissolved on the basis of culpable conduct on the part of the employee (primary), or at least on the basis of a disrupted working relationship (subsidiary).
What does the Subdistrict Court rule?
The Subdistrict Court considered that when assessing whether there was an urgent reason for a summary dismissal as referred to in Sections 7:677 and 7:678 of the Civil Code, the following should be put first.
Summary dismissal is an ultimate remedy, which, in view of its far-reaching consequences, may only be given in exceptional cases. Pursuant to Section 7:678(1) of the DCC, urgent reasons within the meaning of subsection 1 of Section 7:677 of the DCC are considered to be such acts, characteristics or conduct of the employee, which have the consequence that the employer cannot reasonably be required to continue the employment contract. In assessing whether such an urgent reason exists, all circumstances of the case must be taken into account in their mutual context and coherence. Furthermore, the employer bears the burden of proof of the existence and urgency of the reason for dismissal.
The letter of dismissal stated the reason for the employee's immediate dismissal, i.e. seeking a personal approach from an underage student of the employer, while the employee had previously received an official warning. When called to account for his actions, employee trivialised his own actions, seriously and irreparably damaging the trust that employer placed in employee as a driving instructor, the employer stated in the dismissal letter.
The Subdistrict Court held that, in the circumstances, this reason could not lead to a legally valid summary dismissal. To this end, it considered the following.
The Subdistrict Court first stated that the content of employee's messages from the whatsapp conversations between employee and the pupils, were not appropriate in a relationship between driving instructor and pupils. Employee repeatedly sent several young learners messages unrelated to driving lessons, even though he had received an official warning from wekgever in 2019. In particular, the whatsapp messages in which employee inquired about his pupils' alcohol consumption and dating behaviour could not stand up to scrutiny.
The employee's assertion that the contact was merely amicable in nature and that he was referring back to conversations held in the car does not negate the inadmissibility of sending such whatsapp messages.
In the opinion of the Subdistrict Court, sending these whatsapp messages to students is contrary to the integrity that may be expected of a driving instructor, also in view of the difference in age and the dependency relationship that exists between driving instructor and student. Employee should have understood that such behaviour is inadmissible.
However, the foregoing does not automatically mean that the immediate dismissal is justified. According to the Subdistrict Court, it cannot be assumed that employee actually made advances to meet up with pupils. Nor is there any concrete sexual innuendo in the whatsapp history. The employee has argued, giving reasons, that he has never sent sexual or harassing messages to his pupils, and that he has never agreed to meet a pupil outside working hours. Employer has not been able to substantiate this claim with documents to the contrary.
The nature and seriousness of the urgent reason discussed above must be weighed against the personal circumstances put forward by the employee. In this regard, the Subdistrict Court attaches particular importance to the circumstances that employee had already been employed by employer for five years; that employer was satisfied with his track record, that at the time of the dismissal, employee was psychologically disturbed and faced the far-reaching consequences of the dismissal in his personal life. The first consequence of the dismissal was that employee was admitted to a mental health institution for suicidal thoughts.
Against the background of all these circumstances, it cannot be said that sending such whatsapp messages, although inappropriate in itself, should be considered an act of the most serious category. According to the Cantonal Court, there is a difference of opinion between the parties as to what forms of conduct are permissible. A summary dismissal, given its far-reaching and far-reaching consequences, is the toughest remedy the employer can use against the employee. In this case, according to the Subdistrict Court, given the circumstances discussed above, the employer could and should have sufficed with issuing a (second) serious official warning.
On the basis of the above, the Subdistrict Court therefore ruled that the summary dismissal was invalid, that the employment contract between the parties was therefore still intact, and for this reason, the employer's subsidiary request to dissolve the employment contract was granted.
Read the full judgment here.
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