This recent judgment of the Subdistrict Court of Leeuwarden is about an employee who had been employed as Finance and ICT Manager since 2006. Starting from 2017, the employee regularly visited gambling websites. Initially, he used private money to gamble but as from November 2017 he began to take out money from the employer's bank account. It is an established fact that the employee has gambled with an amount of at least €595,000 from the employer. Out of this amount he has repaid €145,000. When the employer discovered the embezzlement, the employee was summarily dismissed. According to the employee, this was unjustified.
Urgent reason for dismissal?
According to the Subdistrict Court, stealing money from an employer in order to gamble with it is so serious that it constitutes an urgent reason for dismissal. However, in this case the following circumstances play a role: the employee has a gambling addiction, a depression, and an avoidant personality disorder. The consequences of the dismissal for the employee and his family are also very serious. But because the offence of which the employee is accused is so serious, the summary dismissal nevertheless stands up in court.
Entitled to a transition fee?
The next question is whether the employee is still entitled to the transition fee. In the event of a serious culpable act or omission, the employer does not have to pay a transition fee. In this case, the employee's psychiatric disorders greatly reduced his capability of self-determination. There was an urge to gamble which the employee could not resist; therefore he is not seriously culpable.
This would mean that the employee is indeed entitled to a transition fee, but according to the Subdistrict Court this outcome is unacceptable according to the standards of reasonableness and fairness. The employer has already suffered a great loss and the employee will never be able to repay the lost money in full. Therefore, in this case the employee is not entitled to the transition fee.
Tips for practice
If an employee is summarily dismissed with good reason, he may still be entitled to a transition fee. This is the case when there is no serious culpability on the part of the employee. However, this judgment shows that even if there is no serious culpability, there may still be an escape route: the reasonableness and fairness.
Is your employee guilty of misconduct and would you like to find out whether dismissal without a transition fee is possible? Please contact our dismissal law specialists.
