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10 May 2022 Private use of NS Business Card: grounds for termination of employment contract on e-ground?

The employer provided the employee with an NS Business Card, for which she signed a user agreement on 1 February 2016. The user agreement states that the card may not be used for private purposes and for door-to-door services, including the OV bicycle and the Greenwheels rental car. During an inspection of the NS invoices in August 2021, the employer discovered that the employee had been using the so-called Greenwheels service since 16 June 2021. The employer subsequently wished to terminate the employment contract. How does the subdistrict court rule?

The course of events was as follows. First, on 6 September 2021, a conversation took place between the parties. A (verbatim) report of this conversation was made. In an e-mail message of the same day, the employee stated that she was very shocked by the fact that the employer questioned her integrity in relation to the use of the NS Business Card. She pointed to the registration stating that she had applied for Greenwheels at her private (email) address. She argued that the employer had received the costs by mistake.

By letter dated 8 September 2021, the employer informed the employee that further investigation was required. In accordance with the Protocol for the Investigation of Integrity Violations and Abuses, the employee was suspended with immediate effect and denied access to the telephone and municipal digital systems. The advice issued on 18 November 2021 concluded that the employee had committed a serious breach of integrity. This was due to the nature of the behaviour (making private journeys using the NS Business Card, with the costs of this being actively passed on to the employer), and the unwillingness to provide the necessary openness or cooperate with the investigation.

The employer requested that the employment contract with the employee be dissolved primarily on the grounds of serious culpability (e-ground).

The employer's Code of Conduct sets out what is expected from the employee in terms of ethical behaviour. It explains what the four core values of openness, agility, focus and reliability mean for acting with integrity. The employee does not dispute the fact that she used the NS Business Card to link to her Greenwheels account, which incurred substantial travel expenses. The Subdistrict Court considered that the rules of conduct referred to in the Code of Conduct and the examples given, the breach of which must be regarded as dereliction of duty, do not include the conduct of which the employee is accused. Apart from this, the Subdistrict Court is of the opinion that the behaviour of the employee does not qualify as a situation in which the integrity of the employee was at stake, such that the employment contract should be terminated.

The latter could be the case if the employee's alleged deliberate use of the NS Business Card, in the sense that she made use of the card and the accompanying facilities purely for her own benefit and at the expense of the employer, were to be taken into account. Employee would then have used and abused her position as an employee.

The sub-district court wants to assume that the employer was very shocked after the discovery of the high travel expenses incurred by the employee in connection with the NS Business Card. It was right to ask the employee for an explanation. However, in the opinion of the sub-district court, the statements made by the employee and the information from the investigation of the facts, taken together, do not sufficiently demonstrate that the employee has made use of or abused her position as an employee.

It must therefore be ruled that the employee did not act in breach of the code of conduct. In the opinion of the Subdistrict Court, acting in breach of the user agreement for the NS Business Card does not qualify as acting in a way that is so culpable as to justify the dissolution of the agreement. The bar is set high for the judgement that there has actually been culpable behaviour.

The sub-district court considered that, under the given circumstances, the employer should have first given the employee a warning.

You can read the judgment here

Would you like to know more about this case or do you have any other employment law issues? The lawyers at SPEE advocaten & mediation will be happy to assist you.

SPEE advocaten & mediation Maastricht


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