The Sub-District Court in Maastricht upheld the summary dismissal of an employee who travelled to an orange zone destination despite his employer’s COVID-19 travel restrictions. The court found it relevant that the employee had already received a number of final warnings and was therefore someone who was “on notice” but nevertheless ignored his employer's policy.
The employee, a fork-lift truck driver, was given a formal warning in November 2019 for two incidents. In the first incident, he grabbed a colleague by the throat during an argument. The second incident was a sort of Houdini act, where the employee got himself wrapped up in cling film by a wrapping machine to test whether he was strong enough to escape.
Two months later, at the end of January 2020, he was given a final warning for placing track-and-trace labels on the wrong pallet. The employer told him that it would take steps if there was any further misconduct, and that such steps might include a change in job tasks at the factory.
Things went wrong again in May 2020. The employee ignored 1.5-metre distancing from his colleagues, used foul language, and several times used his mobile phone in the production department, contrary to company policy. This again led to him being given a final warning. He was also given different work and told that he would be summarily dismissed after any future infraction.
Trip to Poland
At the start of December 2020, the employer prohibited the employee from taking a weekend trip to Poland, because Poland was in an orange zone for the pandemic and because the employee would have to self-isolate for ten days on his return. The employer told the employee that he would be summarily dismissed if he went to Poland, given the previous formal warnings. Nevertheless, the employee travelled to Poland and was then summarily dismissed.
Challenge to the summary dismissal
An employee who disagrees with his summary dismissal may ask the sub-district court to annul it. He can also opt to acquiesce in the termination of his employment contract but ask the sub-district court for the award of a fair payment. The employee opted for the latter, also asking for the transition payment and compensation for the employer's failure to observe his period of notice.
Maastricht Sub-District Court
The sub-district court upheld the summary dismissal and dismissed the applications made by the employee. The following factors were considered relevant:
- the employee had been given a number of final warnings within a relatively brief period;
- these warnings were in writing and the employee had countersigned them as having been received;
- the employee had been moved at work after the third warning, which the employee did not protest;
- as the employee's job could not be done from home, the employer had good commercial reasons on that basis alone for prohibiting the employee from travelling to Poland.
Tips for employers
This decision clearly shows that it makes sense to confront employees about undesirable conduct and then, if necessary, to issue them an official warning. Employers should clearly indicate at that point what the consequences of any further wrongdoing might be, so that the employee is “on notice.” Finally, employers should make sure employees countersign the official warning as confirmation of having received it and add this to their personnel file, so as to simplify the production of evidence.