7 Dec 2021 Prohibition of notice precludes termination of employment contract

At some point, the employee reports sick. Among other things, he stated that he was no longer being heard and appreciated. The employer, however, took the position that there was a question of fraud and requested the subdistrict court to dissolve the employment contract. The employee, however, invoked a prohibition on giving notice (illness). What does the judge think about this?

As indicated, the employee reported sick by email dated 21 November 2019. On 13 December 2019, the employee subsequently visited the company doctor's surgery.

In response, the company doctor stated that it was important to hold a problem-solving meeting in the short term. On 3 September 2020, the company doctor advised scheduling a meeting in the short term to resolve the problems between the parties. Employee is capable of having a 1-on-1 conversation. After the problem is solved employee can start with suitable work and build up his hours. If the problem is not resolved, the company doctor recommends calling in a mediator. On 24 June 2021, the company doctor advises to initiate an employment test.

The employer instituted proceedings and requested that the employment contract be dissolved.

The employer has stated and explained that the request made on the e-ground has no connection with the prohibition on giving notice during illness. According to the employer, the (seriously) culpable behaviour of the employee consisted of the fact that he was guilty of fraud, as, in the case of seven orders which he had won as a salesman, the system was changed in such a way that two colleagues with whom the employee was close were incorrectly named as salesmen and therefore received a bonus, while the employee retained his bonus. The employee disputed this allegation, giving reasons.

According to the Subdistrict Court, it is plausible that a human error or mistake has been made, whereby it is important that the bonus lists were drawn up manually, as was the checking thereof by the employee. This is a labour-intensive process, in which making mistakes is to be expected. There was never any question of actually hearing both sides of the argument. Accusing the employee of fraud without further investigation goes far and is also contrary to good employment practice.

This means that (serious) culpability of the employee cannot be assumed. In the alternative, the employer based its request on the g-ground. The Subdistrict Court considered that in his email of 21 November 2019 to the management of the employer, the employee expressed his dissatisfaction with the way in which he had been heard, acknowledged, valued and (not) informed within the organisation for a number of months. The e-mail shows that he was very upset about this, also emotionally, and that it had a substantial impact on his health in the form of stress-related complaints.

In the opinion of the Subdistrict Court, all of the above constitutes an indication that the problems experienced by the employee relatively shortly before, as a result of which he had developed (medical) complaints and had been found to be unfit for work for a not inconsiderable period of at least three weeks, were not (adequately) recognised and addressed at the time, and that all of this played a role in his actions in the run-up to the meeting of 23 June 2020 and his subsequent reporting sick.

Now that the employer has not brought forward and substantiated any facts or circumstances that refute this presumption, it cannot be established that the request made by the employer on the g-ground is not related to circumstances covered by the prohibition on termination of employment during illness. That prohibition therefore precludes granting the request. All this leads to the conclusion that the employment contract will not be dissolved by the court.

If you would like to read the entire judgement, you can do so here.

Do you have any questions about this judgment or any other labour law related questions? SPEE advocaten & mediation will be happy to assist you.

SPEE advocaten & mediation Maastricht


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