Summary dismissal, the most serious sanction in labour law, is also the trickiest for employers. This is also evident from a recent ruling by the Amsterdam court. Read more here:
What were the facts?
A manager of a construction company in Amsterdam (employed since 2020) was summarily dismissed after complaints of sexually transgressive behaviour by four female employees.
A complaint was received by HR in February 2023, at which time the manager was addressed and warned. However, this was followed by complaints from three more female employees. The manager was suspended and the employer launched an investigation. The four women's complaints were fairly similar: the man did not keep physical distance to the women and talked about private matters, such as his marital problems and his young mistress. The manager also revealed that he knew the company director well, which the women found intimidating. Moreover, three of the four women reported that they had been touched unwanted by the man. For example, one employee was said to have been bitten in her earlobe and another employee indicated that the manager had pushed her into a corner with his body. A third employee reported that she had been grabbed by the manager in the copy room and that on another occasion he switched off the light in that room while she was working there.
The construction company summarily dismissed the manager based on the women's statements. However, the manager went to the subdistrict court: he denied having touched the women and had a different explanation about the 'earlobe incident'. For instance, he indicated that he had spoken to the woman about her desire to leave the construction company. In doing so, he allegedly advised her to talk to the manager as he knew him well. Further, the manager allegedly "sighed" in the woman's ear, as an expression of frustration.
The manager's claim is substantial: he claims as much as €800,000 (!). This amount consists of transition payment, compensation for irregular termination and fair compensation of €788,565.71, because he claims to have worked for the company until his retirement.
How did the subdistrict court judge rule?
To get straight to the point: the subdistrict court awarded a fair compensation of only € 12,000 gross, in addition to the transition payment, the compensation for irregular termination and the payment of accrued holiday days. However, the fact that fair compensation was awarded means that the subdistrict court did decide that the summary dismissal was not justified.
According to the subdistrict court, the employer should have conducted a better investigation and given the manager the opportunity to explain his side of the story. In other words, a fair hearing should have been held. Now that the manager has denied the unwanted touching, this has not been established. The women's accusations of getting too close, discussing private matters and boasting about his relationship with the manager do not constitute an urgent reason for immediate dismissal.
You can read the entire judgment here.
Summary dismissal is the most drastic sanction an employer can impose. The employee concerned is usually not entitled to unemployment benefit and therefore has every reason to go to court, to get his or her job back or to claim compensation. It is therefore incredibly important for employers to consider in advance whether a summary dismissal will stand up in court or not. A judge will look at: (1) whether there is actually an urgent reason for summary dismissal; (2) whether the summary dismissal was given without delay; and (3) whether the urgent reason was communicated to the employee without delay. In all this, the circumstances of the case and the employee's personal situation are considered. 'Defects' are difficult or impossible to repair later, so if you are faced with this as an employer, engage an employment lawyer beforehand. SPEE advocaten & mediation will be happy to help you.