The employee took up employment with the employer on 1 May 2002. On 1 August 2007 he became the manager in the employer’s shop. On 28 April 2010 the employee notified his employer that on 9 February 2010 five sealed bags containing a total of EUR 22,600 had gone missing. The employer responded by suspending the employee for two weeks without pay pending the investigation into the loss of the sealed bags. Based on the results of the investigation the employee was summarily dismissed for (put briefly) financial irregularities. The employee then claimed that his dismissal was void.

Decision of the Subdistrict Court

The employer stated that because of intent or negligence the employee had provided urgent cause for immediate termination of his employment contract. The employer requested that the employee be ordered to pay various items of damage including internal costs, the costs incurred for engaging company investigators and the costs of goods, including a television, which had been supplied to him but not paid for. The Subdistrict Court judge held that the employee had grossly neglected his managerial responsibilities and that the damage was entirely due to that. The judge awarded all the claims except for the claim for internal costs incurred by the employer, which was held to have been insufficiently substantiated. The employee disagreed with the decision and appealed it.

Decision of the Court of Appeal

The employee took the position that the summary dismissal was not legally valid (and was thus voidable). The Court of Appeal also held that by removing the five sealed bags from the safe on 9 february 2010, putting them on top of a box in the office and then helping customers without having a colleague available or closing the office, the employee had grossly neglected his managerial duties. The Court of Appeal also found that another urgent cause for the employer to summarily dismiss the employee was the fact that until 28 April 2010 the employee had tried to cover up the loss of the sealed bags.

According to the Court of Appeal the acts of the employee could be classified as wilfully reckless. It went without saying that in his capacity as a manager the employee could have been expected to have refrained from performing the extraordinarily careless act of leaving the five sealed bags containing a considerable amount of money outside the safe and then leaving them unguarded without locking the office. According to the Court of Appeal this conduct could not be classified as the “reduced attentiveness” or “carelessness” that can be accepted from an employee in certain circumstances. The fact was that the employee had not put forward any circumstances based on which it could be assumed that his attention was so distracted and/or that for other reasons he did not fully realise that there was a considerable possibility of the sealed bags being removed. Here the Court of Appeal also took account of the fact that the employee himself pointed out that items had previously been stolen from the employer’s shops and that they lacked any security.

For these reasons the Court of Appeal upheld the decision of the Subdistrict Court. The Court of Appeal did not see any reason to mitigate the damages awarded. In making this finding the Court of Appeal took the other circumstances into account as well. The fact that the employee did not have the financial means to pay the damages to the employer and that he and his family were currently living below subsistence level and that the summary dimissal in itself had been an enormous blow to him did not mean, according to the Court of Appeal, that the employer should have to bear the damage himself. The Court of Appeal also held that the fact that the employee had always performed well was irrelevant.

Conclusion

In line with established case law, the question whether a summary dismissal is upheld depends on all the circumstances of the case. The Court of Appeal assessed the circumstances of this case, albeit to a limited degree, but concluded that the employee’s conduct had been so serious that there had been urgent cause, both objectively and subjectively, to dismiss him. While other circumstances are generally of an extenuating nature, the Court of Appeal found that this was not the case in this instance. That is unusual, but given the facts of the case we consider this finding justified.

Source CMS Newsflash Employment & Pensions, 2013, issue 4