28 May 2018
Tensions between supervisors and employees occur in the best organisations.
Sometimes these tensions escalate to the point that the rest of the team may be disturbed, and the cooperation is no longer sustainable. Often several attempts are made to restore the employment relationship, but if these attempts do not result in an acceptable solution, there is no other option than to go to court for termination of employment.
The employment relationship between an IT specialist and his employer was central to a recent decision. Following a change of function within the organisation, the employee was no longer allowed to make use of a company car. The employee did not agree with this change and initiated a lively discussion. Subsequently, following consultation with all employees, the organisation introduced an evening shift. The employee in question did not agree with this change either, and caused a lot of commotion. As this employee held a managerial position, his criticism of the changes also influenced his team.
After internal investigation, it turned out that the employee had been sending various work-related files and e-mails to his private email address for years. This was in violation of his confidentiality clause with the organisation. The employee refused to provide an explanation for these actions, at which point he was moved to non-active duties. Despite the fact that the employee was by then in an improvement process, the employer found the above events so serious that he no longer wanted to maintain the employment contract. The employer therefore requested the judge to terminate the employment contract on grounds of a disrupted employment relationship.
The district court judge ruled that there were insufficient grounds for termination of employment, but the Court of Appeal ruled that there was indeed a disturbed employment relationship and that the employment contract could therefore be terminated.
An important consideration in this decision was that the employee’s behaviour: he could not accept decisions that did not suit him and he kept coming back to them. This behaviour was clearly evident in the content, the tone and the continuous flow of e-mails sent by the employee. The judge ruled that it was understandable that this behaviour had caused irritation to the employer. Furthermore, it turned out that colleagues also avoided the employee and that the trust of both parties was gone.
According to the court, in such a situation an employer cannot be required to maintain the employment contract. The employee in this case did not agree with the Court of Appeal’s finding and eventually the case was taken to the Supreme Court.
The Supreme Court agreed with the Court of Appeal’s decision. In a remarkable statement, the Supreme Court added that for an employment relationship to be considered “disrupted” as grounds for termination does not require that the employee is accused. Termination of employment on grounds of disturbed employment relationship is also possible if the employer has contributed to the disturbed relations. However, the judge will take this into account in his decision to terminate the employment contract. The employer may then also owe a fair compensation to the employee.
Supreme Court, 16 February 2018, ECLI (abridged): 220
This article appeared earlier in Rendement.
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