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11 Oct 2022 Instant dismissal for handing over phone to detainee

Our employment law blog this week is about the summary dismissal of an employee of a penitentiary (PI) for allegedly giving a mobile phone to an inmate. The subdistrict court deemed the summary dismissal valid, but employee appealed.

What does the Court of Appeal think? Will the summary dismissal stand, or will it still be annulled?

On appeal, employee mainly tries to refute the witness evidence provided in first instance, on the basis of which the Subdistrict Court deemed the handing over of a mobile phone and/or phone card proven.

The Court of Appeal ruled on this as follows:

court's opinion 2.8 It follows from the above that there are substantial contradictions between the witnesses' statements in crucial parts. The course of events as it was according to [the applicant] that evening, which would necessitate the conclusion that [the applicant] handed over a phone card and not a mobile phone to [name1], has not become clear in many parts - the involvement of colleagues, the cell where [name1] was kept after solitary confinement, the return of [name1] with or without a phone card - with the witness statements. On the contrary, the statements of the witnesses raise questions at important points which have not sufficiently established the course of the evening alleged by [applicant]. [name1] and [name2] did state at the end of their testimony in unison that [the applicant] did not hand over a mobile phone, but because of the aforementioned contradictions, the statements have lost credibility to such an extent that the court does not attribute any significance to them.

In the interlocutory decision, the court of appeal considered the images and the explanation thereof from PI Nieuwegein with regard to the size, the way in which the object in the images is held by [applicant] and moved from the left hand to the right hand, the way in which the object is handed over, the always visible black edge next to the white outer edge of the object and the volume that the object has, so convincing that it has assumed for the time being that [applicant] handed over a mobile phone to a detainee ( [name1] ). With the witness statements, [the applicant] did not refute that preliminary judgment. The contrary evidence has not been provided so that the tentative judgment becomes final.

This means that the court also finds that there was an urgent reason for summary dismissal. The grievances are all reducible to the question of whether the instant dismissal was justified and can therefore be left undiscussed further. As the grievances fail, the order of the subdistrict court will be upheld. As the unsuccessful party, [the applicant] will be ordered to pay the costs of the appeal proceedings.

Read the full judgment here.

Want to know more about this ruling, or about summary dismissal, taking evidence, or other employment law issues? The employment lawyers at SPEE advocaten & mediation are happy to assist you.

SPEE advocaten & mediation Maastricht


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