Of course very unpleasant for the employee himself but also highly inconvenient for employers: detention of the employee. If such a situation lasts longer, the question is: what can the employer do? Can the court dissolve the employment contract? And is the employee entitled to receive the statutory transition payment?
What were the facts?
The employer is a waste management company. The employee has worked there as a driver since 22 February 2021, on a permanent contract. mployee was sentenced to imprisonment in Poland, to be enforced in the Netherlands. After the employer became aware of the employee's criminal conviction, salary payments ceased on 1 March 2023. On 5 June 2023, the employee applied for a pardon from the King.
The employer started proceedings before the subdistrict court and applied for dissolution of the employment contract, on the so-called h-ground: other circumstances that are such that the employer cannot reasonably be required to continue the employment contract.
The employer argued that the employee would be absent for a long period of time due to detention, as a result of which the work would not be performed and the employment contract would not be fulfilled. Because of the long-term detention, reassignment within a reasonable period of time is also out of the question. According to the employer, the prolonged detention is seriously culpable. By committing offences, the employee seriously neglected the employer's interests. For this reason, the employer argues that no statutory transition payment needs to be paid.
The Employee defends himself and indicates that the offences in question were committed already 17 or 14 years ago in Poland, for which probably only community service would have been imposed in the Netherlands. He says he is fully integrated into Dutch society. Between the time of his arrest in March 2017 and the verdict in February 2023, he always fulfilled the duty to report to the police. All this time, his life was put 'on hold'. In the criminal case, the judge advised that he should apply for a pardon. This has since been done, and a positive verdict could follow within 2 or 3 months. Once he is released from prison, the employee would very much like to work for this employer again.
How did the subdistrict court judge rule?
The subdistrict court reiterated what is the basis of the Dutch system of dismissal: there must be a legal 'reasonable ground' for dismissal and there must be no more possibilities of reassignment. The legislative history specifically mentions detention as an example of termination possibilities on the h-ground.
The subdistrict court indicated that an employee's detention does not necessarily lead to dissolution of the employment contract in all cases; the specific circumstances of the case are important. Whether or not there is a lack of mutual trust is not taken into account.
In this specific case, the court ruled that the circumstances justify termination of the employment contract: due to the detention, the employee cannot fulfil his obligations under the employment contract for a long time. Even if the employer no longer pays the salary, the employer still has an interest in terminating the employment contract. An employment contract is entered into to perform work and the employer must be able to assume that employee is available to perform the work. The employer cannot afford a truck that is not on the road and has therefore hired a new driver. Also, employee needs a certificate of good conduct to perform the job and it is uncertain whether he can get one.
In other words: the employer cannot reasonably be required to continue the employment. Nor can the employer be required to await the outcome of the pardon application, as the processing time of the pardon application is about six months.
The fact that this employee has performed excellently and that the employer has invested in the employee does not lead to a different outcome. It should be noted that the employer did indicate that as soon as the employee is released from prison, he can contact the employer again, to see if there are opportunities for re-employment. The question of reassignment is not relevant because of the detention.
The subdistrict court therefore granted the employer's request for termination of the employment agreement. However, the employee was entitled to the statutory transition payment : the employee had acted in a culpable manner, but not seriously culpable. After all, the offences did not take place during the employment but (far) before, and in the Netherlands the only penalty for these offences would probably have been community service, which would not have been an obstacle to working for the employer.
Read the ruling here.
Conclusion
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