Minor offense, major consequence?
It is regularly in the news: an employee has been summarily dismissed for a relatively minor offense (eating from a donut, eating leftover peanuts, or drinking from an expired pack of orange juice). We have a term for this in employment law practice: bagatelzaken (“trivial crimes/minor offences”. Summary dismissal, whether for a major or minor offense, always has serious consequences: wages are immediately stopped, the employee is immediately removed from the workplace and he is usually not entitled to unemployment benefits. A ‘neutral’ reference (or worse) can potentially cause problems in finding a new job. However, an employer who resorts to summary dismissal too quickly may also be left with a hangover: the employee is entitled to wages (with statutory increases), could return to the workplace or claim hefty compensation.
Requirements for summary dismissal
Summary dismissal is a last resort, an ultimum remedium. The requirements are strict:
1. There must be: urgent reason, both objective and subjective.
a. Objective: in general this should be considered an urgent reason. Think of violence, theft, etc.
b. Subjective: this employer must experience the reason as urgent. If he turns a blind eye to staff taking pen and paper home, he cannot suddenly dismiss someone for taking a notepad with him.
2. The urgent reason must be communicated immediately and clearly (so do not wait, and make it clear what the reason is).
3. The employer must immediately dismiss the employee (investigation is allowed in more complex cases such as financial malpractice, but dismissal must follow immediately as soon as an urgent reason has been established).
Sometimes the employee's personal circumstances imply that an urgent reason may nevertheless not lead to immediate dismissal. For this reason alone, it is not always possible to predict what the outcome will be in a lawsuit regarding summary dismissal. Case law offers a colorful collection of rulings in which summary dismissal is sometimes upheld, sometimes not.
Minor offense and no dismissal
A shop employee (2020) from Action gives her father an employee discount, even though that is against the rules.
A catering employee of KLM Catering Services (2008) takes some cashew nuts that were intended to be thrown away from an open container on an airplane trolley and eats them.
A Deen's supermarket employee (2017) takes a bite out of a donut in the warehouse.
A supply driver (2005) takes a water bottle without permission. It was a return shipment, the bottle would be thrown away and destroyed.
An employee (2000) takes two cans of motor oil from Hema on his last working day without paying for them.
When does a minor offense not lead to dismissal?
Why does an offense lead to dismissal in one case and not in another case where apparently the same thing is going on? There are two important circumstances.
First: Policy. The policy (for example on theft and embezzlement) must be clearly laid down in house rules and rules of conduct, such as a theft protocol. The regulations must also make clear what the consequences are if a specific article of the behavioral protocol is violated. The policy must be made known to the employee and the employee must be made aware of the policy during the employment relationship. It is also important that this policy is strictly and consistently enforced. If the employer has a zero-tolerance policy and this policy has not been made sufficiently clear and has not been applied consistently, a minor offense cannot be regarded as an urgent reason.
Second: Personal circumstances. The judge weighs the interests of the employer and employee against each other. He does not only take into account the conduct itself (such as theft or embezzlement) that led to immediate dismissal, but also the personal circumstances of the employee in question. This includes the age of the employee, the length of employment, how someone has behaved during the employment and the consequences for this employee. For example, the summary dismissal of a Hema employee who had stolen a pair of socks was not valid after all, because he had always performed well and dismissal would be too harsh a punishment for him, given his personal situation. In short: one theft is not the same as the other!
Minor offense and dismissal
A catering employee of KCS (first instance 2020, appeal 2021), working at Schiphol, pours spring water into his Dopper (a plastic bottle).
A supermarket employee (2017) takes a pack of Optimel (dairy) and a limited amount of salmon salad without permission. The expiry date of the pack of Optimel was on that same day, the date for the salmon salad had already expired.
A cashier (2017) working at Kruidvat opens a Nivea Care tester and applies the cream to herself. It concerned a product that was given free to customers when they spent more than €10.
An employee (2014) pockets 50 cents for the use of the toilet of employer Buon Giorno.
A postman (2005) steals a stamp belonging to TPG Post with the text "PTT Post Port Paid", stamps a number of his own letters with it and deposits them with the outgoing mail.
When does a minor offense lead to dismissal?
If the zero-tolerance policy has been clearly communicated, for example by handing over the policy when entering into the employment contract and having the employee sign it. If this is the case, the urgent reason is generally established - barring unusual (and unacceptable) rules. For example, Walmart once prohibited employees from entering into relationships with each other. Walmart also wanted to apply this policy outside the US, but a violation of this would never constitute an (objectively) urgent reason in the Netherlands. Honesty and respect for the employer's property are of course essential between employer and employee. A young employee who has not been employment for long is at a huge disadvantage, such as the cashier at Kruidvat. In addition, in certain industries, such as the food industry, it is quite easy to make a thing "unsellable" (just drop a pack of biscuits), so that the product "might as well be taken, because throwing it away is a shame" . That is precisely why a zero-tolerance policy regarding taking products is more often accepted in that industry.
What Flott can do for you
Immediate dismissal is a delicate and, from a legal perspective, fairly precise matter, and the consequences are substantial, both for the employee (if the dismissal was legally correct) and for the employer (if it is not). Flott closely monitors case law on this subject. If you have a case involving this theme: we are ready to help you. Send an e-mail without obligation to: info@flottadvocatuur.nl or reach out by phone (06 34056599). Relevant information can also be found on the website: www.flottadvocatuur.nl.