Be careful while disciplining employees!

The Subdistrict Court in Rotterdam recently rejected the request that an employer had filed to terminate the employment agreement with one of its employees, because the employee had already been disciplined for the same facts.

After an article had been published in the newspaper about the salary package of the company´s director, the employee had sent the director an email about his salary. The company´s Supervisory Board, responsible for the director´s remuneration policy, consequently gave the employee a formal warning.

This did not stop the employee. Not much later, just before the director´s farewell party, the employee sent an email to all his colleagues in which he seriously criticised the director and in which he shared his aversion against the director’s salary.

The employer suspended the employee without pay for two weeks, a disciplinary action provided for in the collective labour agreement (‘CLA’). Consequently the employer filed a request with the Subdistrict Court in Rotterdam to terminate the employee’s employment agreement, primarily for culpable acts or omissions (the so-called e-ground).

The employee defended himself against the termination request and asked the court to nullify his suspension and to force his employer to reinstate him.

No second disciplinary action based on same facts

The Court ruled that the employee’s behaviour could indeed be seen as a culpable act. Nevertheless the Court rejected the termination request because the employee had already been disciplined by the suspension without pay. On the basis of the CLA the employer could also have chosen to dismiss the employee, whether or not combined with a suspension with continued payment. The employer had not done so. A dismissal followed on the suspension without pay would come down to a second disciplinary action based on the same facts. According to the Court, this would be in conflict with the way of sanctioning under Dutch labour law and the intention of the collective labour agreement.

The Court nullified the employee’s suspension and approved the employee´s request to be reinstated.

Supervisory Board not allowed to take disciplinary action against employees

The Court ruled that the formal warning of the Supervisory Board should be ignored since there is no employment relationship between the employee and the Supervisory Board. According to the Court there might be a role for the Supervisory Board in case of disputes between an employee and his employer. However, the Supervisory Board is not allowed to discipline the employee or even to threaten to do so.

Be careful while disciplining employees

A harsh outcome for the employer, even the more so since the Court was of the opinion that the employee’s behaviour should be seen as a culpable act.

Employers, be careful while disciplining employees: be critical, follow the rules accurately and decide on the right course to follow.

Eric van Dam (evd@clintlegal.com / +31 20 820 03 30)