The Dutch Court of Appeal, in The Hague, took the view that an employee who had taken hard drugs immediately before work had “not acted in a seriously imputable manner,” such that the employee was entitled to the maximum transition remuneration (redundancy pay) of € 75,000. Has the Dutch employment law got out of control? Make up your own mind after reading this blog by Dutch employment lawyer Sander Schouten about this case.
Since the introduction of the WWZ (Wet Werk en Zekerheid / Work and Social Security Act) in 2015, Netherlands dismissal law has changed dramatically. The only way an employer can still sack an employee is if a number of statutory grounds have been satisfied. E.g., the employer can terminate the employment agreement if an imputable act or if negligence on the part of the employee is involved, such that the employer cannot in reasonableness be expected to allow the employment agreement to continue, whereby the question is obviously: when is this the case and when not?
In the case in question, the employer, a Rotterdam container terminal, argued that a seriously imputable act on the part of the employee had been involved, because the employee in question demonstrably had used cocaine immediately before work. According to the employer, the drugs use had led to aggressive behaviour, sleeplessness and exhaustion. In addition, the employer asserted that the employee had put his colleagues in danger by causing an automobile accident at work with a company car, after experiencing a blackout and falling asleep. A drugs test confirmed that he had used cocaine. At the request of the employer, the subdistrict court then terminated the employment agreement on the grounds of a seriously imputable act, without awarding a transition remuneration.
The employee’s lawyer appealed against the decision. Like the subdistrict court, the Court of Appeal was of the opinion that the employee had acted imputably, as he had known that drugs use during or immediately prior to work was forbidden, had not observed the rules and regulation in effect and, in addition, had more than once lied to the employer’s investigative committee.
The Court of Appeal was nevertheless not in agreement with the subdistrict court’s standpoint that the employee had acted in a seriously imputable manner. The Court found it of particular relevance that the employee had been in the employ of the employer since 1984 and had performed normally for the largest part of his period of employment. Even though there had, for a substantial period, been frequent absences due to illness, the relevant problems had first begun in 2013, and it had not been until early 2015 that the employee was first seriously reprimanded concerning his behaviour. The Court also found it significant that the employee had had problems in his private life and also had been suffering from physical burn-out. The Court was therefore of the view that the possibility could not be excluded that falling asleep behind the wheel had been caused by this physical burn-out and not through cocaine use. The Court did not find it relevant that the employee had in October 2015 been detained whilst driving around in an (uninsured) automobile together with two Albanians who have been interrogated concerning involvement in drugs smuggling.
The Court of Appeal thus found that the subdistrict court had with good reason terminated the employment agreement on the grounds of imputable action on the part of the employee, but did not regard this action as seriously imputable, such that the employee was indeed entitled to a transition remuneration (which, due to the age of the employee and the date of his entering the employ of the employer, will be in the maximum amount, € 75,000). The Court of Appeal also ruled that the subdistrict court had wrongly terminated the employment agreement as at 1 January 2016, rather than 1 April 2016, such that the employee will now also receive an additional three months’ salary.
The cocaine use of the employee in question had not, according to the Court of Appeal, led to seriously imputable action. Had that been the case, the employee would not have been entitled to a transition remuneration and the subdistrict court would have been able to terminate the employment agreement as at an earlier date than that on which it would normally have ended. This judgement shows once again how complicated it is to dismiss an employee on the grounds of seriously imputable action.
AMS Advocaten has a broad experience in the field of Dutch employment law.