Since the entry into force of the Balanced Labour Market Act (Wet Arbeidsmarkt in Balans, “WAB”), the so-called i-ground also known as the cumulation ground, was added to the exhaustive list of grounds for dismissal. We wrote an article before about this new ground for dismissal. The cumulation ground gives the court the option to combine several grounds for dismissal in order to make up a “fully-fledged” ground for dismissal together. In case of an rescission based on the cumulation ground, the court may award the employee with an extra compensation on top of the transition fee (and possibly the fair compensation) up to a maximum of 50% of the transition fee. This compensation is intended to compensate for the fact that there was no fully-fledged ground for dismissal.
By introducing the cumulation ground, the legislator intended to widen the options of dismissal. During the first months of 2020, this widening appeared to have little success. Until July 2020, all requests for rescinding employment agreements on the cumulation ground were rejected by the courts. Eventually, on 6 July 2020 the Court of Midden-Nederland allowed the first request based on the cumulation ground. Recently, the Court of Midden-Nederland awarded a request for rescission on the cumulation ground again.
Facts
The employee concerned had been working as a physiotherapist in a physiotherapy practice since 1998. The employee's hobby was photography. Since 2006 he has been making photo portraits, among other things, for the employer's website. At some point, the employer received reports of this employee's inappropriate behaviour towards patients and colleagues. For example, one colleague reported that she had felt unsafe and unpleasant by the employee's offer to take ‘unusual photos’ of her. After a written warning and a proposal for termination, the employer submitted a request for rescission to the court on the e-ground (culpable behaviour), the g-ground (damaged working relationship), and the cumulation ground (a combination of the e-ground and the g-ground). In summary, this request was based on the ground that the employee had systematically crossed the line between his position as physiotherapist and his hobby of photography.
No Fully Fledged Grounds
The Court held that both the e-ground (culpable behaviour) and the g-ground (damaged working relationship) were not fully-fledged. Although employer has accused the employee on valid grounds, these facts do not imply such an accusation blame that rescission under the e-ground must follow. Furthermore, it has been established that the employer's trust has been hit hard, but that the employer has failed to make an effort to prevent the employment relationship from becoming even more damaged.
Cumulation Ground
The Court further held that both the culpability on the part of the employee and the damaging of the employment relationship are so substantial that it cannot reasonably be required of the employer to maintain the employment agreement. Although the grounds for dismissal are not ‘fully-fledged’, the court considered that as a result, a rescission under the cumulation ground should take place.
The Court held that it was clear that the employment relationship had been damaged and that both parties had contributed to this. The employee contributed to it with his photography hobby, by not acting with such reticence towards his colleagues and not providing sufficient openness as could be expected of him. The employer has contributed to the disruption by failing to make clear appointments with the employee earlier, and by failing to timely try and create such circumstances as would allow the parties to work together again in mutual trust. Consequently, the court allowed the rescission under the cumulation ground, and awarded the employee additional compensation amounting to 50% of the transition fee.
Conclusion
In case law regarding the cumulation ground, so far the line was followed that there had to be an ‘almost fully-fledged’ ground for dismissal for the courts to allow a rescission. In the ruling described above, the court seems to adhere to this less strictly. Since the combination of the two grounds (the blame and the disruption of the employment relationship) had ‘such substance’, a continuation could not reasonably be required anymore. When using the cumulation ground, it seems therefore advisable to describe clearly why the combination of grounds for dismissal is sufficiently serious to justify a dismissal, even though these grounds individually are not ‘almost fully-fledged’.
Do you have any questions? Please do not hesitate to contact Lisa Klumperink.
