Termination Proceedings
In the termination proceedings KinderRijk initiated, the subdistrict court found that the manager had indeed violated standards of decency and had gone far beyond the bounds of acceptable behaviour. The employment contract was dissolved on the grounds of the manager’s imputable acts. The Court of Appeal concurred with this ruling in its judgment in mid-January.
The manager, however, claimed EUR 75,000 in “fair compensation” (in Dutch: billijke vergoeding), with a net sum of EUR 10,000 of that amount constituting immaterial damages due to the serious harm to her personal integrity. The manager likely made the claim “net” because actual damages are untaxed whereas “purely” fair compensation is taxed.
Damage Award
Given that the employment contract had rightly been dissolved due to the manager’s imputable acts, the Court of Appeal found that the manager was not entitled to fair compensation for material damage. But it found that she was entitled to fair compensation for immaterial damage. By catching the manager off guard with the suspension and communicating details of the suspension to the other staff while the investigation was still ongoing when the manager had not yet been properly heard on the subject, the investigation had not met the requirements of due care and breached the principles of a fair hearing. The Court of Appeal therefore found that the manager should receive immaterial damages for this due process misstep.
Wrongfully Decided?
If the Court of Appeal had interpreted the application for payment of net immaterial damages strictly, dismissing the damage claim would have been the logical decision. After all, feeling more or less severe psychological discomfort or feeling hurt is not sufficient for granting net immaterial damages. What is more, in general, the existence of psychological damage may only be determined by a court if this pertains to disease profiles recognised in the field of psychiatry. The manager failed to make a plausible case for this type of injury.
In this regard, the Court of Appeal considered that, even though fair compensation is not specifically intended purely as punishment, some situations can call for it. This aligns with the New HairStyle judgment of the Dutch Supreme Court, in which the court – briefly put – ruled that all circumstances, including the consequences of the dismissal, should be weighed when calculating fair compensation for wrongfully dismissed employees. Furthermore it is also understandable in light the facts of the instant case. Nonetheless, but the Court of Appeal should actually have awarded gross compensation instead of net compensation.
