Court of Noord Holland, Subdistrict Section, Haarlem location, 13 March 2013, 593361/ AO VERZ 13-65
If an employer catches an employee in the act of stealing, the employer will mostly want to summarily dismiss the employee. When the employee has been summarily dismissed, he can still invoke the nullity of the dismissal six months thereafter. This is an uncertain period for the employer. In that case an employer may institute legal proceedings before the Subdistrict Court, in which a request to rescind the employment agreement is made in case it would appear at a later stage that the summary dismissal does not hold. When the employment agreement is rescinded, this will create clarity and will limit possible claims to wages of the employee. Recently, such a ‘conditional application’ was heard by the Subdistrict Court of Haarlem.
The employee was a chauffeur at ReinUnie. ReinUnie engages in waste disposal. The employee worked, inter alia, in the Afvalbrengstation (ABS), i.e. the civic amenity site.
Company regulations apply to the employment agreement.. These regulations stipulate, inter alia, that taking collected waste with you is only allowed under conditions: ‘This must concern a single item, of little value, that is meant for own use. In addition, permission from the manager must always be asked through a form. No business may be done with the collected waste.’
At the end of 2012 ReinUnie had an investigation conducted into employees of ReinUnie taking waste with them at ABS. From video recordings it appeared that the employee had taken a mountain bike and the wheel of a kart with him. The employee was confronted with this. First he denied, but after having seen the video he recognized that he had taken the goods with him without permission. The employee also recognized that recently one of the managers had said that taking waste with you with permission was not allowed any more either.
Next, ReinUnie summarily dismissed the employee. Three days later the employee invoked the nullity of the dismissal, after which ReinUnie lodged a conditional application to rescind the employment agreement. The primary ground is the theft. As an alternative ground, ReinUnie argued that the confidence had been fully lost since the employee had taken things with him without permission.
The employee argued that it was not necessary to obtain prior written permission. Permission was regularly requested afterwards. According to the employee, the employees were never directly informed either that they could not take anything with them any more. The application forms were still being used. In addition, the things did not represent any value at all and he had done no business with them.
Judgment of the Subdistrict Court
The Subdistrict Court ruled that there was no urgent reason. According to the Subdistrict Court, ReinUnie should have informed the employees clearly that the policy had changed and that taking things with them was no longer allowed. Also because the forms were still being used there was no question of a strict company policy. Besides, other employees who had also taken things with them were punished by giving them a salary decrease. The Subdistrict Court therefore ruled that although the employee can be blamed for his conduct, this does not constitute a ground for rescission.
This judgment once again emphasizes the importance of a clear and strict policy. If there is no clear and strict policy or if the policy is not applied consistently, there is a considerable chance that in the event of a violation of the policy a measure such as dismissal will not hold. It is therefore of essential importance to set out the policy unequivocally in writing, to bring the policy to the attention of the employees regularly and actually to enforce the policy.