Immediate dismissal requirement for summary dismissal
One day, as an employer, you may find yourself in a situation where you need or want to summarily dismiss an employee. Theft, fraud, threats and violence are situations that come to mind when asked for a reason, but refusal to work without good reason can also be a reason for summary dismissal.
A summary dismissal is very drastic and a last resort to allow the employer to dismiss an employee immediately in case of an urgent reason. However, the employer still has the obligation to substantiate why the summary dismissal is justified. Among other things, there must be an urgent reason, a tough requirement – but that is not all, the court must also take into account other strict rules.
The legal regulation on urgent reasons for summary dismissal by both employer and employee can be found in Article 7:677(1) of the Dutch Civil Code.
The employer, as the stronger party, must exercise the utmost care in the event of a proposed summary dismissal.
As an employer, do you know in what circumstances a summary dismissal is possible and do you know the steps you need to go through to give that dismissal correctly?
Several court cases have shown that most employers struggle with this issue, mainly because they do not know what they should and should not do. However, the consequences of an incorrect assessment can be extremely nasty – such as the court setting aside the dismissal with the employer being ordered to pay not only back wages, but also fair compensation.
Below, we will take you through an important requirement in instant dismissal – the requirement of promptness.
The requirement of promptness
The requirement of promptness obliges the employer to act promptly.
What constitutes promptness depends on the circumstances. For example, a situation where an employee commits theft or threatens another requires immediate action by the employer. But when an employer suspects an urgent reason to dismiss an employee, as in the case of fraud, for example, it must seek legal advice and conduct an investigation to prove the fraud before proceeding with immediate dismissal. However, the employer may not wait “too long” to conduct an investigation, as then the immediacy requirement is not met and the summary dismissal therefore does not meet the requirements to be valid.
The judgment of the Rotterdam District Court of 13 September 2022 shows how to deal with the immediacy requirement.
The case involved an employee who, in his position as finance director, had an active role in the irregularities found in invoices and weekly schedules in which the company, of which he was finance director, RRF, tried to get additional compensation from another company (ProRail) and actively instructed drivers to put incorrect descriptions on their invoices.
Following the investigation, RRF summarily dismissed the employee and also claimed damages under section 7:677(2) of the Civil Code because deliberate or culpable behaviour by the employee forced RRF to terminate his employment contract.
The employee successfully challenged the claimed damages.
The Rotterdam District Court ruled that the requirement of promptness was not met here because the investigation launched by the employer, RRF, was not carried out with due diligence. The investigation was completed only after nine months, and the instant dismissal was therefore also only given after nine months.
The reason for the delay was not strong enough for the court. It involved “busyness among RRF staff, holidays and illness of both staff and investigators and receiving data dumps that took a long time to decipher”. A rapid investigation was not conducted because the investigation in this case had been ongoing since May 2021, relevant mail messages were not shared with investigators until late August and mid-October 2021, and interviews did not take place until October 2021. This delay is at the risk of RRF, the employer.
In another case before the ‘s-Hertogenbosch Court of Appeal on 13 October 2022, the requirement of promptness also does not apply, but here the employee was nevertheless ruled against.
The employee in question regularly failed to appear at work without cancelling. The employee subsequently indicated several times that he could not come to work, and the employer subsequently reported the employee sick. The occupational health and safety service tried unsuccessfully to contact employee.
Employer sent employee a letter on 17 November 2021 to give him a very last chance to appear at work on 22 November 2021. Employee subsequently did not appear at work on 6 December 2021 either. On 8 December 2021, employer summarily dismissed employee by letter for not appearing at work for several months.
The court ruled that employer did not give immediate notice, employer summarily dismissed employee 8 December 2021 while it had already given him the last chance 22 November 2021. The court ruled that employee had acted seriously culpable, by not performing work, and that employee was not entitled to transitional compensation.
According to the court, the employee’s seriously culpable conduct was much more serious than the employer’s culpability in delaying in giving immediate dismissal.
What is important in this case is that the employee could still have avoided the dismissal if he had responded to the employer’s very last attempt. The court ruled that the employer did not have to pay fair compensation to the employee.
Very recently, on 22 November 2022, the Arnhem subdistrict court ruled, in a very interesting case, that the employer did indeed have an urgent reason for summary dismissal.
The case involved an employee whose contract was not to be renewed, who quickly downloaded “a few more files” as soon as he heard that the end of his employment contract was in sight.
The employee had joined Ocean APS on 1 April 2022 under a fixed-term employment contract. Ocean is a data platform that focuses on optimising sales and marketing within companies through a self-developed algorithm and proprietary database. Customers can access the data platform by taking out a subscription with Ocean.
On 8 June 2022, Ocean informed the employee that it would not renew his employment contract. The employee was eligible for immediate termination of the employment contract with a termination payment of three months’ salary.
It was agreed that Ocean would prepare a draft settlement agreement.
Ocean found on 20 June 2022 that a large amount of datasets had been downloaded using the employee’s account on 8 June 2022 and 13 June 2022. The employee was summarily dismissed a day later.
This downloading of datasets also counts as theft (criminal law) and data breach (GDPR), making this an even more interesting case.
The employee – naturally – disagreed with this and went to court arguing that the summary dismissal was unjustified and even asked for fair compensation – which we think was rather silly!
The subdistrict court ruled on 22 November 2022 that there was indeed an urgent reason for summary dismissal. Ocean had substantiated the downloads by the employee with information from a third party – so the downloading by him was established. Ocean had a well-founded suspicion that the employee would (could) use the datasets elsewhere. Indeed, the employee had gone to work for another company targeted by the datasets. The combination of the quantity of downloaded datasets, the timing of these downloads, the employee’s involvement with the competitor, as well as the lack of a proper explanation from the employee, means that Ocean’s suspicions about the employee’s behaviour at the time of the instant dismissal were sufficiently well founded that the instant dismissal was justified.
This is a great example of (i) how not to do it when you are an employee and (ii) how to do it when you are faced with such a situation as an employer.
Case law has established guidelines on whether an immediate dismissal was justified, namely:
(a) the nature and extent of a necessary investigation;
(b) the caution that may be required in such an investigation;
(c) the gathering of evidence;
(d) the prevention of unrest in the company;
(e) the possible need to seek legal advice;
(f) the care an employer must take not to prejudice an employee’s interests in the event of unfounded suspicion.
Nevertheless, whether immediate action has been taken often depends on the circumstances of the case. In the case of summary dismissal, the relationship between the requirement of promptness and the duty of care taken must be considered.
An employer can launch an investigation if a suspicion of an urgent reason has arisen on the basis of which the correctness of this suspicion can be tested. The investigation ensures that an employee is not unfairly and wrongly summarily dismissed because of an incorrect suspicion. To this end, the employer must observe a duty of care, but the investigation will also have to be initiated and completed expeditiously. In other words, the investigation should not take longer than necessary.
When assessing the promptness of the dismissal, it comes down to an employer being able to explain why a summary dismissal was not possible earlier and why an instituted request took some time.
Legal advice is important
The employer should make every effort to investigate expeditiously and ensure that the investigation is not unnecessarily delayed. The employer must still take into account the diligence of the investigation, but must not unnecessarily compromise the requirement of diligence.
These requirements make it difficult for the employer to defend a summary dismissal in court. In addition to meeting the requirements of diligence and promptness, there must also be compelling reasons. This is a requirement in itself and must meet a number of criteria. Good preparation can ensure that the employer is not caught off guard by the court. Taking timely legal advice is one of them.
It can seem overwhelming and often employers do not know exactly where and how to start. Such cases can cause problems and create a tense working atmosphere. ACG International can help employers with redundancy issues.
ACG International is specialised and experienced in assisting both employers and employees in issues of (dismissal) grounds. It is important for both employers and employees that these matters are and remain on the right track.
ACG International’s managing partner, Edith Nordmann, is an expert in the field of employment law. She has worked as a lawyer in this field for more than 20 years and can provide practical and strategic advice on employment contracts and assist in their termination.
If you are looking for more information and advice on how to proceed in the event that summary dismissal is necessary, she is the right person to turn to. ACG International offers quick, free “redundancy check” strategy sessions to help employers assess what needs to be done to comply with the requirements and not be surprised by a claim afterwards.
To book your free “redundancy check” strategy session, email email@example.com or call us on +31 20 800 64 00.