30 January 2020
Unacceptable or inappropriate sexual behaviour, such as harassment, is a current topic.
Employers can draw up guidelines for this and set up a complaints committee. Yet things sometimes go wrong and inappropriate behaviour can lead to termination of employment. The judge in a recent case found that the employee’s conduct was culpable, but that the summary dismissal was inappropriate.
The employee in question was employed since 2017. In January 2019, a 22-year-old female colleague filed a complaint against the employee for undesirable behaviour consisting of sexually motivated comments and unwanted physical touches. Based on the applicable complaints procedure within the organisation, a complaints committee was established to address this. The employee was informed of this, relieved of his duties and his salary payment was stopped. At the same time, he was offered a settlement agreement to terminate his employment agreement.
The complaints committee questioned all the parties involved and received a number of screenshots of chats. On 7 February, the complaints committee ruled that the complaint was well founded and, one day later, this ruling was shared with the employee.
The employer indicated that this was sufficient for summary dismissal, but gave the employee the opportunity to accept a settlement agreement until 11 February. The employee apparently did not agree, because on February 11 he was fired on the spot. He went to work elsewhere on March 18.
The employee subsequently started a lawsuit in which he claimed fair compensation and overdue wages. An employee can claim this if a judge finds that the summary dismissal is not valid.
All circumstances play a role in such a case, including the nature and seriousness of the behaviour, the duration of the employment and the (personal) circumstances of the employee.
In this case, the employee claimed that he had not acted inappropriately and had no bad intentions. He also said that the woman had never indicated that she did not like his behaviour. However, the judge ruled that he had indeed behaved inappropriately and that it was not just about innocent flirting behaviour, as the employee suggested. In addition, the judge found that it was irrelevant whether the woman had protested or not. The judge observed, “For certain things you do not have to be warned; you just don’t do them.” Moreover, there was an age difference of around twenty years between the employee and his colleague.
Nevertheless, the judge ruled that the culpable conduct in this case did not justify immediate dismissal because of the culture that existed within the organisation. This organisational culture included loose manners and the frequent sharing of photographs and videos of a sexual nature that could even be labelled as racist.
In the above judgment, the judge ruled that employers who allow utterances or behaviours that are on the verge of acceptability cannot then suddenly dismiss an employee immediately when they go over this edge. In fact, in this case the employer was held jointly responsible for the behaviour of the employee.
An organisation may have an informal atmosphere, but the employer must make it clear which behaviour is and is not permissible. The employer should pay extra attention to this when it is customary for employees to see each other outside working hours, for example during organised drinks or office outings.
It is advisable as an organisation to draw up guidelines and a complaints protocol. This makes it clear to employees where the limits are and what consequences follow when those limits are exceeded. The employer can fall back on this during legal proceedings.
It is also important to act quickly after a complaint has been submitted. The judge takes this (time to action) into account when assessing the legal validity of the dismissal.
If you have a question about unacceptable behaviour in the workplace or you’d like to know more about summary dismissal, please contact me for assistance.
This article was previously published in Rendement.
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