Don’t count the number of warnings

The court had to decide whether an employee who repeatedly arrived late at work, was accused of failing to take into account the applicable procedures when reporting sick, and refused to perform certain, by the employer requested tasks, had been lawfully dismissed with immediate effect.

Official warnings

At the time of the dismissal, the employee had been employed by the company for just over two years. His work consisted of stocking products and preparing customer orders very early in the morning. In both 2023 and 2024, the employee had repeatedly arrived late. He had also reported sick several times after 8:00 a.m., while the staff handbook required that sick reports be made before that time. Each incident resulted in an official warning.

In the month prior to dismissal, the employee refused to carry out certain tasks requested by his employer. When he again arrived late on 20 November 2024, the employer decided it was the final straw and dismissed him with immediate effect.

The file

Given the extensive disciplinary record, one might assume the case was clear-cut. However, it was not. The court looked beyond the number of warnings and concluded that the dismissal was unlawful.

Because the employee started work very early in the morning, it was impossible for him to report sick in the prescribed way. The branch manager was not yet available at that time. The employee therefore reported sick to a colleague instead, which the employer had previously accepted.

As for the alleged refusal to work, the court held that there was insufficient evidence to support this claim. The frequent lateness, too, was not considered serious enough to justify dismissal with immediate effect. It involved only four incidents over two and a half years, with more than a year between the last two.

Dismissal with immediate effect

Although the court ruled that the summary dismissal was unjustified, it nevertheless ruled that the employment contract would be terminated due to a disrupted working relationship. The employer successfully argued that there was no longer any confidence that the employee would improve his behaviour. The court also noted that the employee himself had acknowledged in messages to the employer that the working relationship had become strained.

Absence policy in the staff handbook

As seen in this case, a staff handbook often specifies how employees must report sickness. Especially when colleagues or third parties depend on an employee’s presence, it is important that absences are reported correctly. Failure to follow the policy may justify disciplinary action.

Rules and practical application

It is also essential that employees are aware of the rules and are actually able to comply with them. When drafting absence policies, employers should consider the nature of the different roles within the company and record any exceptions in writing.

Illness during holidays

When drafting an absence policy, also consider how to handle sickness during holidays. Days on which an employee is ill while on leave do not count as holiday days, provided the employee follows the company’s sickness reporting procedure.

More information

Do you have questions about this article or need advice regarding a dismissal? Please feel free to contact us.

Rechtbank Gelderland 3 april 2025, ECLI(verkort):2585

This article was previously published in Rendement.