We do not see it very often: an employee who resigns with immediate effect. This recently happened in a case before the subdistrict court in Amersfoort. Did the resignation stand up in court? And was the employee in question also entitled to receive fair compensation from the employer?
Facts
The employee (born in 1997) works as a horse caretaker for an approved work placement company since 1 December 2019, for 32 hours a week. She goes to school one day a week. For her education, it is required that she has her own horse. That horse is stabled with her employer, for a monthly fee of € 300.
The employee works for a large part for the daughter of the employer. Unfortunately, a disagreement arose and they no longer wanted to work together. The working relationship with the employer also deteriorates. They discussed terminating the employment contract by means of a settlement agreement, but the employer decided against it.
In the week of 3 May 2021, it was agreed that from now on the employee would work once every fourteen days on Saturdays instead of Thursdays. Subsequently, a dispute arose about whether the employee should work on Saturday 8 May 2021. On 5 May 2021, the parties had a discussion about this, during which the employee, according to her own statement, was called a 'dirty, filthy piece of shit' and a 'cunt' by her employer.
On 7 May 2021, the employee went to work. The employer then sent her away and immediately terminated the agreement for the stabling of the employee's horse. According to the employee, the employer indicated that if she did not remove her horse that same day, he would let the horse go that evening. The employee's representative informed the employer by email on 7 May 2021 that the employer would be held liable if he did indeed let go of the horse. The employer responded in writing on the same day.
Also on 7 May 2021, the employee was signed out for a competition that was to take place at the employer's premises the following day. Employee contacted employer via WhatsApp, who responded as follows:
"Because you have to leave the grounds today with your horse but I have already informed you of that and you can therefore no longer ride with me on the grounds think she herself knows why".
"I did but that has nothing to do with your horse leaving the premises today you know that we both have no notice period and I am my own boss on my premises who I want in the stable".
"The gate is locked at ten o'clock".
At 00.13 hours the employer sent the employee a photo of her horse, standing outside in the dark, with the caption "You have forgotten something".
On Saturday 8 May 2021, the employee resigned with immediate effect because of the way in which the employer had treated her and her horse. The employee confirmed the dismissal by email from her representative on 9 May 2021. On 1 June 2021, the employee found a job elsewhere.
The employee went to the Subdistrict Court and applied for an order that her employer pay her - €2,751.59 gross in fixed damages; - €947.09 gross in transitional compensation; - € 1,428.71 gross of fair compensation. - EUR 1,831.50 gross in accrued but unused holidays; - Extrajudicial costs and legal costs.
The basis of the employee's requests was that her employer had acted in such a way that she could not be required to continue the employment contract. The employer put forward a defence and disputed that there were urgent reasons for the immediate dismissal of the employee. For this reason, the employer submitted a counterclaim, in which he claimed the fixed compensation.
The subdistrict court ruled that the employee rightfully resignated with immediate effect within the meaning of Section 7:679 (1) of the Dutch Civil Code. The employer treated the employee in an unacceptable manner on 5 May 2021. The cancellation of the employee's participation in the competition without consultation is also unacceptable. This also applies to the way in which the employer treated the horse of the employee.
In short: the Subdistrict Court awarded the requested fixed damages and the transitional allowance to the employee. However, this does not apply to the fair compensation: the law does not provide for the possibility of awarding fair compensation if the employment contract has been terminated by the employee due to serious culpability on the part of the employer.
If you want to read the judgment, you can do so here.
Conclusion
Are you an employer or employee and do you have questions about a (potential) instant dismissal? Or can we help you with other employment law issues? The team of SPEE advocaten & mediation is ready to assist you.