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25 Aug 2023 Summarily dismissed for absence after GP visit

Employer bites the dust.

As a loyal reader of our blogs, you probably know our position: be careful with summary dismissal as a last resort! This is demonstrated once again by a recent ruling by the Limburg District Court.

What were the facts of the case?

The employee had been working as a paver chiefe since 1 February 2022, on a temporary contract. On 9 March this year, he was late for work. Subsequently, an incident with a colleague took place. It allegedly involved an discussion and a hand-to-hand combat/fall. Employee continued working until the end of the day. The next day, the employee phoned work at 7am and informed that he needed to see a GP due to physical complaints following the fall the previous day. The employer agreed to this. On 9 March in the evening, employee had already informed his employer via Whatsapp that he was in the hospital for further examination.

On 10 March, employee was summarily dismissed, with the motivation: "Coming to work late several times and refusing to come to work today, plus refusing to come for an interview with employer today. This is considered work refusal."

Employee does not leave it at that and goes to the subdistrict court. He requested compensation for irregular termination (€5,586), the transitional allowance (€1,269), fair compensation (€9,000 gross) and holiday allowance and leave entitlement.

How did the subdistrict court judge rule?

The subdistrict court turns back the instant dismissal, ruling that there were no grounds for it. After all, it is clear that employee went to the family doctor with the knowledge and agreement of his employer for his complaints after the fall a day earlier. While this would normally fall under 'short-term absence', that does not apply here: employer knew about the 9 March incident in which employee had hurt himself. Employee performs physical (heavy) work and should therefore be fit. When employee did not appear at work after the doctor's visit, employer should have counted that morning's phone call as sick leave. Especially since employer knew that employee had also been to the emergency room.

As for the 'repeated late arrival at work' (which the employee was confronted about earlier): this may indeed have led to the proverbial last straw that breaks the camel’s back, but in this case it should have led to a dismissal with due observance of the notice period (and therefore not to summary dismissal).

The subdistrict court awarded the compensation for irregular dismissal (arrears of salary), as well as the holiday allowance and the outstanding holiday days. The transitional allowance was also awarded. Since the subdistrict court ruled that the employer had indeed acted seriously culpable, fair compensation of €6,100 gross was deemed reasonable and determined. It was taken into account that the employee had not been employed for long and that he had found a new job at very short notice. But the subdistrict court also made it clear that fair compensation may have a preventive effect, in order to send a signal to the employer, even though such compensation is not punitive in nature.

Read the ruling here.

Conclusion

This ruling shows that employers should handle the heavy remedy of summary dismissal with caution. There must be an urgent reason for summary dismissal. Moreover, the summary dismissal must be immediate and the employer must immediately inform the employee of the urgent reason. Here, it is important that the dismissal letter is worded correctly. If these requirements are not met, the summary dismissal may still fail in a procedure. As an employer, you would therefore do well to call us on time. Of course, this also applies to employees facing summary dismissal. Do you also have questions on this subject? Call the employment lawyers at SPEE advocaten & mediation.

SPEE advocaten & mediation Maastricht

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