When does an employee act seriously culpable towards his employer and consequently loses his entitlement to the transition allowance? The answer was already difficult to give. Unfortunately two recent court rulings do not clarify this question.
Recently, the Court of Appeal in The Hague ruled that an employee who appeared late at work repeatedly, fell asleep during working hours, behaved aggressively and eventually caused an accident under the influence of cocaine, has not acted in a seriously culpable manner. The Court ruled that – although the actions of the employee were to qualify as culpable acts or omissions as stated in the Dutch Civil Code – they could not be considered as sufficiently serious. Consequently the employee remained entitled to the transition allowance. Also the notice period should not be respected. The Court considered it particularly relevant that the employee had been employed for a long term (22 years) and the fact that the employee underperformed only during the last two years. Furthermore, the Court considered it important that the employee suffered from burnout, which could also have caused the accident.
On the other hand, the Court of Appeal in Den Bosch ruled that an incapacitated employee who did not meet her reintegration obligations and also went on holiday without the consent of her employer, did act seriously culpable towards her employer. Besides the fact that she was dismissed with immediate effect the Court also ruled that she was not entitled to the transition allowance. In contrast to the aforementioned case, the Court considered the long-term employment (more than 5 years) as well as the financial implications of the dismissal irrelevant.
In short, one can conclude that court rulings can be considered completely arbitrary with regard to the assessment of whether the employee acts serious culpable or not. Apparently, arriving too late at work on a regular base, falling asleep during working hours and eventually causing an accident at work under the influence of cocaine is considered less serious than breaching the reintegration obligations and go on holiday without permission of the employer. Finally, there are different opinions about the relevance of additional circumstances.
It would be very welcome if courts would give more uniform rulings in these matters.
Hilde de Kubber (hdk@clintlegal.nl / +31 20 820 03 30)
