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3 Nov 2022 Probationary dismissal is not permitted

Dismissal of employee with cancer is discriminatory

The probationary period: a short period during which employer and employee can get acquainted without any obligation and both can terminate the employment contract without notice and without legal grounds for dismissal. But there are exceptions to this! You can read more here:

What were the facts?

Employee entered into a one-year employment contract with decoZorg on 30 March 2022, effective from 1 May 2022. She was to work as a Day Care Coach at a salary of €2,241.62 excluding holiday allowance, for 28 hours a week. Previously, employee had a permanent contract with Zuyderland, which she terminated on 31 March 2022 to join decoZorg.

On 7 March 2022, employee reported sick to Zuyderland and after examination, she was diagnosed with an aggressive form of lung cancer on 12 April 2022. On 28 April 2022, decoZorg terminated the employment contract, involving a probationary dismissal.

What does the employee claim and why?

The employee went to court and claimed fair compensation of €57,346.05 gross and €5,000 net, to be increased by compensation for pension damage, plus statutory interest. Her position is that decoZorg terminated the employment contract because of disability or chronic illness.

After she was diagnosed with lung cancer, her husband had several telephone contacts with decoZorg. In those contacts, decoZorg indicated each time that the employee's illness was the reason for dismissal. This is also indicated by the letter of termination dated 28 April 2022, which says: "Unfortunately, the current situation does not allow us to make another decision".

According to the employee, this action by the employer violates the Equal Treatment Disability or Chronic Illness Act (Wgbh/cz). It follows from that Act that it is forbidden to make a distinction when offering, entering into and terminating an employment relationship, whereby the circumstance that a person is treated in a different way on the basis of disability or chronic illness than another person is, has been or would be treated in a comparable situation is considered a (direct) distinction. According to the employee, decoZorg acted in violation of this prohibited distinction with the termination of 28 April 2022. In her request for fair compensation, the employee assumed that her sick pay obligation would continue for 2 years (and thus until 1 May 2024), making the assumption that her annual contract would have been extended beyond 1 May 2023.

What is the employer's position?

DecoZorg puts forward a defence, stating that it came into contact with this employee through the intervention of another employee of decoZorg. Both women had previously worked for a previous employer. The decoZorg employee proposed this employee to decoZorg as a suitable candidate for the vacancy at decoZorg. However, according to decoZorg, at the time of the recruitment and selection of the new employee, her employee was not aware that a reorganisation was imminent within Zorg & Co, the group of companies to which decoZorg belongs. DecoZorg did not communicate internally regarding this reorganisation until April 2022.

In short: according to decoZorg, the termination letter of 28 April 2022 was therefore based on this reorganisation and the related staff freeze and had nothing to do with the employee's illness. There is therefore no reason to award fair compensation to the employee, according to decoZorg.

What was the judgment of the subdistrict court?

The sub-district court did not accept decoZorg's arguments: there was indeed discriminatory dismissal and a violation of the Wgbh/cz.

In this context, the sub-district court referred to the telephone contact between the employee's husband and decoZorg and to later conversations, in which only the employee's illness and its consequences for the employment relationship were discussed. In those conversations, decoZorg - represented by an HR manager - made it clear that the employment contract could not be maintained because of the employee's illness. The employee expressly disputed that neither during those telephone contacts nor otherwise did the business economic position of decoZorg come up for discussion.

The letter of notice from decoZorg dated 28 April 2022 also does not elaborate on the alleged existence of circumstances other than the employee's illness. The director of decoZorg still indicated during the hearing that there was initially a passage in the letter about decoZorg's poor financial position, but that it had been taken out to avoid unrest within the organisation. But the subdistrict court did not go along with this.

The director further argued that he had already received signals on 25 February 2022 that serious financial problems were looming, but an employment contract was nevertheless concluded with the employee on 30 March 2022. According to the subdistrict court, it should have been up to decoZorg to ensure that its HR department became aware that a staff freeze was necessary and that no more new employment contracts could be entered into.

According to the subdistrict court, decoZorg had further failed to provide any substantiation for its claim that things would be dramatically bad for decoZorg financially, even though there was plenty of time for this.

In short: the subdistrict court ruled that there was no other conclusion than that the employee's dismissal was inextricably linked to her illness. The dismissal was therefore unlawful and discriminatory, and the employer acted seriously culpable towards the employee.

The subdistrict court awarded the employee fair compensation of €33,000 gross. Unlike the employee, the subdistrict court did not assume that the employment contract would certainly have been renewed after one year. Indeed, DecoZorg would have been free not to extend the contract after 1 May 2023. The pension damage claimed by the employee is not awarded because it is not specified. Non-material damages were not awarded, but procedural costs were.

You can read the entire judgment here.

Final Remarks

This ruling shows well that the probationary dismissal also has limits, namely in those cases where there is discrimination due to illness. Do you also have questions on this topic? Or about other employment law topics? The team of employment lawyers at SPEE lawyers & mediation will give you honest advice.

SPEE advocaten & mediation Maastricht

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