Dismissal of employee calling his boss a ‘fucking whore’ reversed by Dutch Court

Dismissal of employee calling his boss a ‘fucking whore’ reversed by Dutch Court

In the Netherlands, an employee of a wholesale trading company was dismissed with immediate effect because he called his team leader a ‘fucking whore’. The employee did not accept the dismissal and started up legal proceedings against his employer. In September 2012, the Court decided that the dismissal with immediate effect is void and that the employer must continue to pay wages. According to the judge, an insult of that nature does not justify dismissal with immediate effect. Sander Schouten, a Dutch labour law solicitor, explains the decision.

 

Dismissal with immediate effect in The Netherlands

The employee called his team leader a ‘fucking whore’ because she had chided him for chatting rather than working. This was the reason he was dismissed with immediate effect. The employee denies having said these words, and states that even if he had expressed such terms, this would have been the consequence of the hostile attitude that the team leader had adopted towards the personnel for quite a while. A group of employees, including himself, had submitted a petition to the management just prior to this incident, asking their attention for the unworkable situation that had apparently arisen on the work floor due to this problem. The employees had requested the management to restore the working climate to a pleasant atmosphere. According to the employee, the management did not act on this petition at all. The employee did not think dismissal with immediate effect was fair, and requested the Court to find the dismissal void and to have the employer continue to pay wages.

Dutch employment law: dismissing an employee

The district court states that in the first place, an employee should not call either a colleague or a supervisor a ‘fucking whore’. The judge agrees with the employer that such behaviour should not be tolerated and that some measure is justified. However, the judge finds that dismissal with immediate effect is punishing the employee too severely for the insult. In the second place, the court thinks it is relevant that the employer apparently did not act upon the personnel’s petition at all. In that context, the court finds that the severity of the employee’s words should be assessed in the context of the tense relations between employee and team leader. The judge also thinks it is relevant that the team leader addressed the employee in a direct style, telling him to ‘stop gabbing and start working’. Under the circumstances, dismissal with immediate effect is too severe a punishment according to the court. The judge is of the opinion that the team leader should be expected to be able to deal with bad language. The employer should have chosen a less severe measure. For those reasons, the Court decided that the dismissal with immediate effect is void and that the employer must continue to pay wages.

Dutch lawyer: interim relief proceedings continued pay

In this case, the employee chose to challenge the dismissal with immediate effect by means of full proceedings. In most cases, Dutch parties chose to request return to work and continued pay in interim relief proceedings. Certainly in a case where someone is dismissed with immediate effect, an employee will want quick action. After all, payment of wages is generally suspended on the day the employer dismisses the employee. This is why it is in the employee’s best interest to quickly challenge the dismissal in interim relief proceedings, demanding continued pay and reversal of dismissal. Additionally, the employee may claim a statutory surcharge on wages paid past their due date.

Employment lawyers in Amsterdam, The Netherlands

Law firm AMS in Amsterdam has Dutch labour law specialists. Our labour law solicitor is able to assist employers regarding dismissal of employees, or assist employees in redundancy and dismissal cases, demanding reversal of dismissal and continued pay, or severance pay, in interim relief proceedings.

 

Sander Schouten - Advocatenkantoor AMS Advocaten
Sander Schouten Sander both advises and litigates in the areas of corporate law, insolvency law and Dutch employment law. He is very experienced in restructuring, reorganization and litigating in complex civil proceedings. Also follow Sander on Google or LinkedIn. Sander is available via e-mail and +31 (0)20-3080315.
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