18 December 2024
In staff manuals I regularly come across the rule that a third warning automatically leads to dismissal with immediate effect. In baseball terminology, this is called a ‘three-strikes-and-you’re-out’ policy. An employer from Eindhoven also called this an ‘oei-foei-doei’ policy.
After this employer issued four warnings to an employee for various offences, the employer thought it was enough and, citing policy, dismissed the employee with immediate effect. The court’s ruling shows that such a policy by no means automatically leads to a valid dismissal with immediate effect.
It has the advantage of simplicity: including in the staff manual the rule that dismissal with immediate effect will follow after three warnings. It is always a good idea to provide a warning in writing. Indeed, it may deter an employee from engaging in certain behaviour in the workplace, under penalty of dismissal with immediate effect. However, an employee can always petition the court to annul the dismissal with immediate effect and ask to return to work or for fair compensation. The mere fact that a rule states that dismissal with immediate effect follows after three warnings is insufficient for a court to rule that the dismissal is valid.
Nowhere in the law does it say that three warnings automatically warrant such a sanction. However, an employer will be in a stronger position in proceedings about dismissal with immediate effect if they have already warned the employee about certain behaviour. This warning should be in writing, which acts as proof for the employer. I would advise against a verbal warning, which I also sometimes come across in staff manuals as the lowest form of disciplinary sanction, because it makes it difficult for the employer to prove. For completeness: sometimes a dismissal with immediate effect is possible, such as zero-tolerance policies for theft that many companies apply.
Referring back to the ruling of the Eindhoven Subdistrict Court of 1 May 2024. The court ruled on the legality of a dismissal with immediate effect that followed four warnings; each time for different acts/misconduct by the employee. The employer’s accusation in the dismissal letter is that the employee violated the strictly applied rules three times and then also seriously betrayed trust by his behaviour during illness, which resulted in a fourth warning and dismissal with immediate effect. In doing so, according to the Subdistrict Court judge, the employer effectively invoked its own three-strikes-and-you’re-out policy.
However, a policy can never by itself constitute grounds for a valid dismissal with immediate effect. In each case, the nature and seriousness of the conduct, and the personal circumstances of the employee, must be assessed with regard to whether the incidents and conduct for which previous warnings have been given warrant dismissal with immediate effect.
In this case, it is also significant that the warnings were always given for different incidents and therefore not, for example, for repeated misconduct during illness or repeated lateness. Again, even three consecutive warnings to show up at work (three-strikes-and-you’re-out) does not automatically lead to a legally valid dismissal, but is dependent on the severity of the absence and its impact on business operations and colleagues.
The Subdistrict Court subsequently reviewed the most recent incident: a video via Snapchat of the ill employee partying. The employer had not asked the employee for an explanation, did not engage in a conversation and, given the rehabilitation situation, a lighter sanction would have been more appropriate. Such was the opinion of the Subdistrict Court, which accordingly deemed the dismissal with immediate effect invalid. Thus, the partially ill employee must also be enabled by the employer to perform his rehabilitation work again, with continuation of salary.
Reliance on such a policy may be sufficient for a valid dismissal with immediate effect, as long as the conduct is sufficiently serious and the dismissal is immediate. Dismissal with immediate effect therefore always requires a review of the gravity of the incidents on which the previous warnings were based. While it may seem straightforward to draft a letter for dismissal with immediate effect for this purpose, this is not always the case. This letter defines the reason for dismissal and is thus decisive for subsequent proceedings on the question of what exactly the dismissal with immediate effect was given for. It must also, as mentioned, provide proof by the employer of the misbehaviour/behaviour of the employee.
Do you have questions about disciplinary sanctions or a sanctions policy? Or would you like advice on drafting a dismissal letter? Please do not hesitate to contact me or one of our other employment lawyers.
