Termination of employment during sickness?
A recent decision of the High court of Justice Arnhem-Leeuwarden on 19 July 2019 shows that despite an sick employee, this does not have to stand in the way of termination of the employment contract. The court terminated the employment agreement without awarding an extra financial compensation, which was confirmed by the High court of Justice.
What was going on?
A managing director working in Belgium, also statutory director of a Dutch legal entity is under fire after the implementation of a reorganization in Belgium. All kinds of complaints about the behavior of this managing director were received from 11 employees.
Eight of these employees were not affected by the reorganization, the rest did. The complaints urged the employer to conduct an internal investigation. The complaints are qualified as complaints about aggressive and unlawful behavior, alcohol abuse, favoritism, non-professional relationships and unrest within the organization. The employee denies the complaints and argues that there is “boss bashing” in response to the implementation of the reorganization and the far-reaching consequences that this entails.
On April 26, 2018, the employee was suspended with immediate effect. The employee reported sick on 30 April 2018. The company doctor judges that there is a conflict situation. After mediation does not offer a solution, the subdistrict court judge dissolves the employment contract due to a disturbed employment relationship with a transition payment of € 29,750.94. There is no connection with the disease. The employee disagrees and appeals. Despite the fact that the employee in appeal does not request to reinstate his employment contract, according to the employee there is a prohibition against termination during illness and states that the employer acted contrary to the principles of being a good employer. The employee requests the determination of an equitable remuneration.
What is interesting about this verdict?
Despite the fact that the employee is sick, both the court of first instance and the court of appeal ruled that this circumstance does not lead to a prohibition against the termination of the employment agreement in the event of illness. The disruption of the employment relationship is caused by the employee’s actions as a result of his own behavior and attitude. The employee has stated insufficiently to assume that the behaviors to which the complaints relate can be associated with an unreasonable workload for the employee. The employment contract is therefore dissolved by the judge.
Although the employee is sick, this does not mean that it is not possible to dissolve the employment agreement due to a prohibition against termination. In fact, the court applies the legal possibility of Article 7: 671b paragraph 6 of the Dutch Civil Code. A provision that is rarely used. In case the illness of an employee, which in principle results in a prohibition against termination, is not related to a termination or if an employment contract must end in the interest of the employee, the court can therefore terminate the employment agreement. In the past the possibility already existed. In accordance with the old Article 7: 685 paragraph 1 of the Dutch Civil Code, the court had to ascertain whether the request was not related to a prohibition against termination, such as illness. Under the actual mandatory law, however, it is no longer possible to terminate the employment agreement of a sick employee in the event the job is being lost as a result of economic circumstances. If such a situation occurs, the employer is obligated to find a solution via so-called track 2 (mandatory obligation for reintegration outside the employer) and not via dismissal law. But in case of a disruption of the employment relationship and this forms the legal basis in order to terminate the employment, under specific circumstances, a termination of the employment agreement will be possible.
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