Summary Dismissal of a Sick Employee; Think Again! | Kennedy Van der Laan

Summary Dismissal of a Sick Employee; Think Again!

When the re-integration process of a sick employee is difficult, this may lead to disputes between employer and employee. We found a recent example of this in a ruling of the Court of Overijssel.

The Facts

The employee in this case works as a driver/order picker. Since September 2016 the employee has been unfit for work due to back complaints. His reintegration proceeded with difficulty. Since the employee could no longer do his own work, the employer suggested several lighter duties. Some of those were desk work, but the employee also had to do cleaning work (including the cleaning of toilets). Furthermore, the employer demanded that the employee would use his ‘reintegration hours’ to apply for other positions and/or look for a secondment posting. The employee stated that he wanted to do desk work only.

Since the employee did not agree to the substance of his re-integration process, he went home several times as soon as he had finished the desk work. In response to this, the employer stopped paying the employee’s wages. The employer informed the employee that this wage freeze would be maintained until the employee would be doing adjusted duties daily from 8:30 to 16:30. On 2 February 2016 the employee was summarily dismissed due to his adamant refusal to perform suitable work. The employer also accused the employee of having a disrespectful and condescending attitude. For example, on one occasion the employee allegedly walked away while being spoken to and put his fingers in his ears. The employee asked the Court to nullify the summary dismissal.

Judgment of the Court

The Subdistrict Court held that the parties disagree on the question what must be understood by suitable work. By law, the employee is obliged to perform suitable work and has to accept reasonable proposals of the employer. Reintegration obligations allow the employer to stop paying the employee’s salary if he refuses to perform suitable work without a valid reason, but this is a last resort.

The Subdistrict Court held that the employee has not refused to work, because his wages had been stopped. Furthermore, in light of the wage freeze imposed, there is no urgent reason for a summary dismissal, even if and in so far as the employer’s argument that the employee has wrongly refused to do the work offered would appear to be correct. The proper action the employee should have taken would have been bringing a legal action for back wages. The parties should have resolved their dispute on reintegration within this legal framework. Dismissing an employee summarily due to his refusal to work is not the appropriate way. The Subdistrict Court nullified the dismissal.

Considering Summary Dismissal of a Sick Employee?

This ruling makes clear that it can be very risky for an employer to summarily dismiss a sick employee who is not cooperating in his reintegration. Employers already have several sanctions to choose from intended specifically for employees who are unfit for work. If an employee refuses to cooperate in his reintegration, the employer can stop paying his wages. If this measure has no effect, the prohibition to give notice during illness will lapse and the employer may request the court to rescind the employment agreement. This way the employer will not incur any loss, because he can stop paying wages if the employee refuses to work. Seen from this perspective, a summary dismissal is not in the employer’s best interest.

The Dutch Supreme Court ruled in the Vixia/Gerrits judgment that the mere breach of regulations for checks by the employee does not constitute an urgent reason for dismissal. However, such an urgent reason may exist if additional circumstances are present. In the opinion of the Subdistrict Court, this rule cannot be deemed to extent to a breach of reintegration obligations by the employee. After all, in that case the employer has the heavy sanctions available of halting wages or dismissal through a rescission. The breach of regulations for checks only carries the sanction of a suspension of wages.  

 

Court of Overijssel, 6 April 2017, ECLI:NL:RBOVE:2017:1580

Author(s)

  • Marieke OpdamMarieke Opdam