Refusal to resume work after conflict results in summary termination

An employee who had a dispute with his employer and declared to be incapacitated for work as a result, refused to resume work. Eventually it resulted in termination of the contract for substantial reasons.

The employee, a service technician, employed since 2005, had reported ill on November 30th 2010 and February 15th 2011, which sickness notices had led to sanctions on the part of the employer, such as counting against holidays and deduction of salary. On March 21st 2011 the employer (while simultaneously suspending the employee) applied for permission to terminate employment because of ruffled employment relationship, but this application is rejected on June 6th 2011, because the employer would have insufficiently established the facts that the employment relationship was seriously, irreversibly and permanently disturbed. Then on June 15th 2011 parties discuss the situation. The employer offers two options: continued employment in another team and with another supervisor or termination of employment, granting dismissal compensation. When the employee accepts neither option, the employer notifies by letter dated July 22nd 2011 that the suspension will be cancelled by August 1st 2011 and that the employee has to resume work by then. On August 1st 2011 the employee does not resume work, but uses e-mail to report ill. A rush control by the safety, health and welfare service shows that the employee is not at home. On August 4th 2011 a Union agent announces that the employee still agrees to termination of employment by September 1st 2011. By e-mail of August 16th 2011 the employee announces to have “two more points” and on August 29th 2011 a new agent knocks on the door on behalf of the employee, stating that he once again wants to negotiate the conditions of employment termination. Subsequently, the contract is not terminated.
On September 7th 2011 the company doctor diagnoses that incapacity for work due to illness or deficiency is not the case, so parties have to discuss work resumption, either with or without the assistance of a mediator. The employer then summons the employee to resume work on September 9th 2011. On Friday, September 9th 2011, the employee works, but then, on Monday, September 12th 2011, he reports ill. The employee moves an appointment with the company doctor first, and then gives notice that he is unable to come. This results in a letter from the employer on September 16th 2011 with the announcement that wage payment will stop and that the employee has to resume work on Monday, September 19th 2011, failing to do so he should be prepared for serious consequences for his employment. When even then the employee does not resume work, the employer sends a letter, September 22nd 2011 with a final warning: the employee has to resume work on Monday, September 26th 2011; otherwise he will be summarily dismissed. The possibility for the employee to ask the Employment Insurance Agency (UWV) for an expert opinion in case he really believes he is ill is explicitly pointed out. On September 23rd 2011 the employee shares, by e-mail, that he has visited the company doctor who will contact the employee’s GP for information. Since the employee, however, does not provide the company doctor with the contact information, the employer writes another letter to the employee about this on September 27th 2011. He puts a time limit until Friday, September 30th 2011, to provide the company doctor with the GP’s contact information. On October 11th 2011 the company doctor reports that the employee would let him know that he had authorised his GP to inform the company doctor, but that he has not yet heard anything from the employee about it. Then, same day, the employer dismisses the employee with immediate effect because of persistent refusal to resume work, even though the employee is not sick. The employee alleges the nullity of this summarily dismissal, resulting in two proceedings at the Magistrate’s Court, that are jointly handled: one in which in summary proceedings the employee claims continued payment of wages and another one in which the employer asks the Magistrate to conditionally (i.e. in case the employment contract would still appear to exist) repudiate the employment contract. That repudiation is primarily claimed for a substantial reason (the same one that was used for the summary dismissal) and subsidiary, because the facts deal with a change in the circumstances that justifies the employment repudiation. The employee states that he is ill and refers to a letter from his GP of October 25th 2011, stating that the employee suffered from panic attacks, created by the stressful employment relations, which prevented him to go to work. The GP would also have declared this to the company doctor, but the GP’s letter would have got lost in the post, whereas the GP had kept no copy.
Firstly the Magistrate rules that the employee was not ill. The district court gives priority to the opinion of the company doctor at this point, because it is the company doctor’s task to identify disabilities to carry out work resulting from diseases and because he is specifically trained to do this. Additionally, there is no evidence of treatment of the symptoms, that the employee has not substantiated that the complaints made him incapacitated for work, and that he has not requested the UWV for an expert opinion.
Then the Magistrate judges if the employee, even though he was not ill, could still be incapacitated for work due to imminent mental or physical complaints and if such incapacity than reasonably should be felt by the employer. According to Supreme Court case-law in such case it is to the employee to establish the facts in proceedings and, if necessary, to make a reasonable case. In this context the Magistrate rejects a number of the facts and circumstances put forward by the employee. The employee, for instance, had stated that in February 2011 while working at the station in Rotterdam he had become the victim of serious intimidation by a group of people, but the employee never reported this incident to the employer and, when the employer found out via the NS (Dutch Railways), the employee had refused to lodge a complaint and had refused the employer’s support. The fact that a dismissal procedure had been carried out was not considered as such a circumstance either, because the discussion the parties had afterwards had not resulted in termination of the employment contract, so the em-ployee had to resume work after the discussion. The argument that the employee had felt very bad on the one day he had worked (September 9th 2011) and had asked a colleague to take him home was questioned by the employer and the employee could not provide any plausible evidence. The fact that the employer had not used mediation (according to the employer because the employee could already work at a new location under a new leader anyway) was rejected by the Magistrate because the employee had never insisted on mediation.
All in all, the Magistrate reaches the conclusion that an urgent reason for summarily dismissal is the case. Discontinuation of wage payment had not had any effect and in such case the employer is allowed to terminate the employment contract. A substantial reason for dismissal is only an issue in case of additional conditions, but they were there in the form of the wage deduction and letters warning for a penalty dated 16th and 22nd September 2011. The employment contract is conditionally dissolved by January 20th 2012 (the date of the magistrate’s decision). Since this is done for a substantial reason, no dismissal compensation will be granted to the employee either.