30 Aug 2022 Disruption of working relationship due to incorrect information provided by the employee about his criminal conviction
This blog post deals with an employee who is convicted of a criminal offence and provides his employer with incorrect information. The employer subsequently applied to the subdistrict court to terminate the employment contract on the basis of a breach of trust/disruption of the working relationship. Does the subdistrict court agree?
On 20 January 2021, the Public Prosecutor's Office levied a prejudgment attachment on Future Connections in connection with criminal offences of which the employee was suspected. On 2 May 2022, Future Connections asked employee about the progress of the criminal proceedings. On this occasion, the employee informed Future Connections that he had in the meantime been sentenced to imprisonment and that he had lodged an appeal. On the same day, Future Connections suspended the employee.
Shortly after the conversation on 2 May 2022, the employee provided Future Connections with the verdict. From this verdict, it appears that the court has proven that employee has embezzled banknotes with a total value of € 425,000.00 in the course of his employment, and has also attempted to embezzle € 1,575,000.00 in the course of his employment.
The main issue in this case is whether the employment contract between the parties should be dissolved.
In the opinion of the Subdistrict Court there are reasonable grounds for dissolution, namely a disturbed working relationship, such that Future Connections cannot reasonably be required to allow the employment contract to continue. As acknowledged by the employee, it must be assumed as a matter of fact that in January 2017 he embezzled banknotes totalling €425,000 from his then employer, where he worked via a temporary employment agency, which were at his disposal by virtue of his position. Employee says that he acted under threat from his uncle, who has been convicted of money laundering, and that it was a serious one-off mistake. With regard to his application to Future Connections, the employee states at the hearing that he did mention an open criminal case.
The employee stated that he himself contacted a team leader he knew at Future Connections, because he had to leave his last temporary employment because he could not obtain a VOG at that time. In view of the above, in the opinion of the Subdistrict Court it is plausible that, prior to his employment with Future Connections, the employee reported that he was unable to obtain a VOG due to an outstanding criminal case and that he was therefore looking for another job. The mere fact that the employee did not, of his own accord, provide any details about the crime he had committed 1.5 years earlier, which was apparently not asked for, is insufficient to justify the dissolution of the employment contract.
This is different for the conversation between the parties that took place as a result of the seizure of wages by the Public Prosecutor's Office. It is evident from the documents and also from the hearing, where Future Connections frequently used the word 'trust', that the essence of this case is that what the employee told Future Connections in this conversation about his part in the crime deviated to such an extent from the contents of the judgement in the criminal case with which Future Connections became acquainted in May 2022, that this constituted an irreparable breach of trust for Future Connections, which was the reason for not wanting to continue working with the employee.
The nature of this breach of trust means that it cannot be repaired, so that Future Connections cannot be blamed for not having taken any initiatives in this regard.
This means that the Subdistrict Court will grant Future Connections' request and that the employment contract will be dissolved on the grounds of a disrupted working relationship.
You can read the judgment here.
Would you like to know more about this judgment or do you have any other employment law questions? SPEE advocaten & mediation will be happy to assist you.