A driving instructor is dismissed with immediate effect due to allegations of sexually transgressive behaviour. This is (unfortunately) a current topic. The employee opposes his dismissal. How do the subdistrict court and the court of appeal rule?
On 3 November 2020, the employer gave driving lessons to X. X had previously received driving lessons from the employee. During this driving lesson, X told the employer that the employee had displayed verbal sexually abusive behaviour towards her. On 5 November 2020, employer confronted employee about the complaint she had heard from X about him.
Employee told her, that things had actually been reversed, that X liked him and had shown this to him. On Friday 13 November 2020, the partner of another pupil contacted the employer by telephone, telling him that the employee had verbally sexually harassed his partner.
On that weekend, 14 and 15 November 2020, employer contacted several other female pupils by telephone with questions about employee's behaviour. Written statements (unsigned) were submitted from four other pupils and from a mother of a fifth (underage) pupil, all describing verbal cross-border and intimidating behaviour by employee.
On Monday 16 November 2020, the employer invited the employee to its office for an interview. During this interview, the employee was summarily dismissed.
The subdistrict court rejected the employee's request to nullify the instant dismissal in its entirety and ruled that the employment contract between the parties had been validly terminated on 16 November 2020. The employee lodged an appeal.
The court of appeal put first and foremost that the reason given for the dismissal was the alleged transgressive behaviour of the employee (i.e. inappropriate sexual comments, sexual harassment and intimidation of a number of female driving school pupils), which in itself could constitute an urgent reason for immediate dismissal.
The employee argues that the first complaint about his alleged cross-border behaviour by X was already discussed with him on 5 November 2020. Between that alleged conduct and the instant dismissal on 16 November 2020 there was too much time, in his opinion. Between the warning on 5 November 2020, the second complaint on 13 November 2020, the investigative actions on 14 and 15 November 2020 and the instant dismissal on Monday 16 November 2020, there is not too much time, in the opinion of the Court.
Considering the nature and seriousness of the complaint about the employee, the Court of Appeal considers it understandable that the employer wanted to act extremely carefully and did not yet want to proceed to immediate dismissal after the discussion with the employee and the analysis of the first complaint on 5 November 2020.
Partly in view of the nature of the situation, which involves a certain position of power between the teacher and the (vulnerable) pupil in a small environment (car) and (often) without the presence of third parties, the employer could not be required to allow the employment contract with the employee to continue.
After all, the safety of its (vulnerable) pupils could no longer be guaranteed due to the cross-border behaviour of employee. In addition, employee had only been employed for a very short time (six weeks). Taking all the circumstances into account, the court of appeal was also of the opinion that there were compelling reasons for the instant dismissal.
You can read the full judgment here.
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